Boli v. Irwin

• Decision Date: 01 June 1899
• Citation: 51 S.W. 444
• Parties: BOLI et al. v. IRWIN et al. [1]
• Court: Kentucky Court of Appeals

51 S.W. 444

BOLI et al. v. IRWIN et al. ^[1]

Court of Appeals of Kentucky.

June 1, 1899

Appeal from circuit court, Lyon county.

"Not to be officially reported."

Action by Irwin & Son against L. A. Boli, Sr., and others, to enforce a judgment to set aside a mortgage as fraudulent. Judgment for plaintiffs, and defendants appeal. Reversed.

W. G Bullitt, for appellants.

L. W McKee and T. J. Watkins, for appellees.

PAYNTER J.

Irwin &amp Son sought and obtained a judgment subjecting certain property of Boli, Sr., to the payment of their judgment debt. To do this, it involved the necessity of having declared fraudulent a mortgage of $15,000 which Boli, Sr., executed to Jacob Buckle and Jacob Boli, and also a writing purporting to be a bill of sale from Boli, Sr., to Charles H. Zwick. The mortgage was intended to secure Jacob Buckle and Jacob Boli in such sums as might be raised through the First and Second National Banks of Hamilton, Ohio, for the benefit of Boli Sr. The testimony of bank officers and lawyers familiar with the transaction clearly establishes the fact that the money was actually raised by Jacob Buckle and Jacob Boli, and received by Boli, Sr., as contemplated by the parties in the execution of the mortgage. The testimony does not even create a suspicion--much less, a conviction--that the transaction between Boli, Sr., and the mortgagees was for a fraudulent purpose. The uncontradicted testimony shows that Jacob Buckle mortgaged his property in Hamilton, Ohio, to secure the payment of money which was received by Boli, Sr., and that he was compelled to sell it in order to pay the debt. Since the execution of the mortgage, Jacob Boli has departed this life and the uncontradicted testimony shows that over $4,000 of the money which he raised for Boli, Sr., has been paid by his personal representative, and the estate is obligated for the balance of the debt. The testimony is entirely satisfactory that the indorsement of cancellation which was made upon the mortgage was done conditionally, and was to go into effect upon Boli, Sr., borrowing money from certain banks in Kentucky with the view of paying it on the debts which he owed Jacob Buckle and Jacob Boli, and, in the event he failed to borrow the money, the indorsement of cancellation was not to be operative. This cancellation was never placed upon the record. The statements of Boli, Sr. (not in the presence of the mortgagees), to certain persons from whom he was endeavoring to borrow money, that the mortgage was not a valid one, and was executed for a certain purpose, is not competent evidence against the mortgagees. If the rights of a mortgagee can be destroyed by that character of testimony, all that would be necessary for the mortgagor to do would be to execute a mortgage, and then tell his neighbors it was...