Hildeburn, &C. v. Brown, &C.
| Citation | 56 Ky. 779 |
| Court | Kentucky Court of Appeals |
| Decision Date | 31 January 1856 |
| Parties | Hildeburn and Brother <I>vs.</I> Brown, &c. |
APPEAL FROM SHELBY CIRCUIT.
Tho. J. Throop for appellants —
Brown and Whitaker for appellees —
COPYRIGHT MATERIAL OMITTED
The petition of appellants avows that the arrangement between their agents and Sherrod, was to withhold the mortgage from registration for the purpose of sustaining the latter in business and "not to record the same unless there was danger of Sherrod's failure, which danger was to be suggested to Throop &c."
This allegation and the withholding of the mortgage from record, together with failure to insert the day or month of its execution, tend strongly to corroborate the statements of Sherrod, who proves, that he was to have free access to the instrument, and should the danger from other creditors become imminent in the absence of the attorney, was to fill up the blanks and forthwith lodge the instrument for record.
The effect of the arrangement, though it may not have originated in any actual fraudulent or evil purpose, was to secrete from the public eye the true condition of the debtor, and thereby enable him, under the semblance of being the owner of unincumbered real estate, to deceive and mislead other persons by inducing them, upon the faith of his supposed unembarrassed condition, to give him credit which would otherwise have been withheld.
Such contrivances or acts, though not designed to perpetrate an actual fraud upon other persons, have an inevitable tendency that way, and are obviously opposed to the general policy of the law requiring the public registration of all liens and incumbrances upon property permitted to be retained and claimed by debtors.
If not directly within that class of acts which the law denominates constructive frauds, it approximates so nearly to it, that the party avowing himself a participant in such transaction, ought not to receive the countenance or aid of the chancellor in enforcing any lien or claim growing out of it as against third persons.
Without therefore determining the sufficiency of the allegded notice to the trustees, or the effect thereof as to the beneficiaries of the deed, it seems to us, for the reasons stated, that the chancellor below properly denied any help to appellants in the attitude in which they presented themselves.
Wherefore, the judgment of the court dismissing the petition as to Brown and Neal, and the...
To continue reading
Request your trial
-
State Savings Bank of St. Joseph v. Buck
...is given to this principle of law in Walsh v. Chambers, supra , which was a case of an omission to record a deed. In Hildeburn v. Brown, 56 Ky. 779, 17 B. Mon. 779, plaintiffs sought to foreclose an unrecorded mortgage against a subsequent assignment for the benefit of creditors. There had ......
-
Central Nat. Bank v. Doran
... ... lien. Blennerhassett v. Sherman, 105 U.S. 100; ... Goldsby v. Johnson, 82 Mo. 602; Walsh v ... Chambers, 13 Mo.App. 301; Hilderburn v. Brown, ... 17 B. Mon. 779; Bank v. Housman, 6 Paige, 526; ... Hilliard v. Cagle, 46 Miss. 309; Walton v ... Bank, 13 Colo. 265; Steel v. Coon, 43 N.W ... will be declared constructively fraudulent, though no ... actual intent to defraud exists. Hilliard v ... Cagle, 46 Miss. 309; Hildeburn v. Brown, 56 Ky ... 779, 17 B. Mon. 779; Bank v. Housman, 6 Paige Ch ... 526; Sukeforth v. Lord, 87 Cal. 399, 25 P. 497 ... ...
-
Bunch v. Schaer
...ownership of the land. 43 N.W. 411; 105 U.S. 100, 117; 2 Vern. 261; 44 Pa.St. 43; 46 Miss. 309; 2 Md.Ch. 270; 1 Ired. (N. C. Law) 490; 17 B. Mon. 779; 104 U.S. 428; 2 Vern. 510; 7 B. Mon. 374; 6 Paige, Ch. 109 Mo. 40; 123 Mo. 141; 7 S.E. 743; 52 Ark. 458; 41 N.W. 514; 58 Ark. 297; 62 Ark. 2......
-
Hutchinson v. The First National Bank of Michigan City
...Lockwood v. Slevin, 26 Ind. 124; Barker v. Barker's Assignee, 2 Wood C. C. 87; In re Leland, 10 Blatchf. 503, 15 F. Cas. 292; Hildeburn v. Brown, 56 Ky. 779, 17 Mon. (Ky.) 779. The fact that the rights of the creditors, among themselves, to the property or fund sought to be protected or rec......