H. Anderson, &C. v. Bradford
| Citation | 28 Ky. 69 |
| Parties | <I>H. Anderson, &c.</I> <I>vs.</I> <I>Bradford.</I> |
| Decision Date | 01 November 1830 |
| Court | Kentucky Court of Appeals |
Appeal from the Bracken Circuit; WM. P. ROPER, Judge.
ON the 15th of August, 1818, James Anderson sold to George Boucher, a tract of land, for the sum of $2940, and executed a bond for the conveyance of it.
Boucher executed two notes for the purchase money, each for $1470. The first was payable in one, and the second, in two years, after date.
Upon one of these notes, Anderson sued and recovered judgment, which was replevied by Boucher, with Waters and Winslow, his sureties.
Bradford sold a tract of land, containing one hundred and twenty two acres, to Anderson, at the price of about $2423, and the contract was reduced to writing, in the form of articles of agreement. In part payment of this sum, Anderson assigned the note which had not been put in suit, to Bradford.
On the 19th of May, 1820, Boucher executed to Martin Marshall, a deed of trust, for a tract of land and a female slave, to secure Bradford, in the payment of $1739, in one year thereafter, that being the amount calculated to be due, on said note, and the interest thereon, to the time mentioned in the deed of trust, for its payment.
On the 6th of June, 1822, Anderson assigned to Bradford the replevy bond aforesaid, in discharge of the remaining portion of the price of the land, and Bradford then conveyed to him the land, and executed to him a note, binding himself to pay Anderson $100, when he should collect the amount of the replevy bond.
To subject the property in the deed of trust to sale, in payment of the amount, for which it was executed, and to subject the land which Anderson had sold to Boucher, to sale, in discharge of the replevy bond, Bradford filed the original bill, in this case. He charges, that the sureties in that bond, were insolvent, and insists, that by virtue of the assignment to him, he had an equitable lien on the land aforesaid, for the amount embraced by the replevy bond, and for as much of the debt secured by the deed of trust, as might not be raised by the sale of property, therein mentioned. James Anderson, Boucher and others, were made defendants.
In his answer, Boucher acknowledges, that the deed of trust had been executed to secure the payment of the above described note. He makes his answer a cross-bill, and charges that Anderson had not a valid title to the land, which he had sold to him; that a part of it had been recovered from him by L. Craig, upon the demise of Thomas; and that there was an equitable out-standing title to the same, in the heirs of May, P. Thomas and others, and that those under whom Anderson claimed, had not regularly conveyed to him. He also, filed an original bill against Anderson and others who claimed title to the land, alleging the same facts, stating that the replevy bond had been executed upon the same consideration; had been assigned to Bradford; and prays for a rescision of this contract with Anderson; and that the deed of trust, assigned note and replevy bond may be cancleled. An injunction was granted him, against the replevy bond.
In the mean time, Anderson filed his bill against Craig and Thomas and heirs of May, &c. who set up claim to the land, which he had sold to Boucher, and also, against his vendors, for the purpose of having the deeds regularly recorded, and of quieting and perfecting his title.
These causes were tried, at the same time, and upon a final hearing, the circuit court perfected the title of Anderson, to the land sold by him to Boucher, and decreed, that Anderson should convey to him, upon the payment of the purchase money, and dismissed Boucher's bill and cross bill, which he had instituted to vacate the contract with Anderson, and to cancel the note, replevy bond and deed of trust. The court also, subjected the land embraced in the deed of trust to sale, and confirmed the sale thereof, made by the commissioner appointed for that purpose.
The land was sold on the 22d of September, 1826, on a credit of two years, for $1587 4 cents, which amount deducting therefrom, the costs of the suit against Boucher and Marshall, was placed to the credit of Boucher, on the debt secured by the deed of trust.
The land purchased by Boucher of Anderson was, by decree, subjected to sale, in payment of the replevy bond, upon the ground, that Bradford as assignee, had the same lien on the land, that Anderson previously had. It was accordingly sold, on the 22d of September, 1826, for $1031 25 cents, for which Boucher was allowed a credit, on the replevy bond. In the above decree, all the parties concerned, acquiesced.
Bradford had thus received parts of each of those demands; but there remained unpaid, a portion of the money, to secure which, the deed of trust was executed; and of that embraced by the replevy bond.
To coerce payment of those, he filed a supplemental bill, and the decree rendered thereon, presents the only subject of contest, in this appeal.
In this supplemental bill, Bradford charges, that he sold and conveyed the tract of land in his original bill mentioned, to Anderson, and received in payment therefor, the above mentioned assigned note and replevy bond, and that Boucher and his surety in the replevin bond are insolvent, as are also his sureties in the injunction bond executed in the suit prosecuted, to rescind the contract between Boucher and Anderson. He further alleges, that Boucher and James Anderson, had left the state of Kentucky, the latter carrying with him all his property, and thereby rendering him unable to coerce from him, payment of the demands, which he had against him, as assignor of the note and replevy bond aforesaid, unless he can procure a decree, subjecting to sale in satisfaction thereof, the land sold by him, Bradford, to Anderson.
He insists, that he has a lien upon it, for that purpose, and prays, that by decree, it may be enforced. He charges, that James Anderson conveyed the same to Ward, who conveyed it to Henry Anderson, son of said James, each of whom had knowledge, before he received a deed for the land, that he, Bradford, had not received from his vendee, the whole of the purchase money, and each of whom had received a deed for it, founded upon no valuable consideration, with the intention of defrauding James Anderson's creditors. James Anderson, Henry Anderson and Ward are made defendants.
Ward and Henry Anderson deny notice, and all fraudulent intentions.
Against James Anderson, the bill was taken as confessed, upon publication against him as a non-resident. At the March term, 1829, a decree was entered in favor of Bradford against James Anderson, for the sum of $975 22 cents, as a balance due on the replevy bond, after deducting the credit of $1031 25 cents, and the sum of $100, and interest thereon, for which said J. Anderson held Bradford's obligation, payable upon the collection of the replevy bond.
The deed from James Anderson to Ward, and that from the...
To continue reading
Request your trial