Zerelda Storms, &C., v. C. C. Storms, &C.

• Decision Date: 19 December 1867
• Court: Kentucky Court of Appeals
• Parties: Zerelda Storms, &c., vs. C. C. Storms, &c.

66 Ky. 77

Zerelda Storms, &c., vs. C. C. Storms, &c.

Court of Appeals of Kentucky.

December 19, 1867.

APPEAL FROM GARRARD CIRCUIT COURT.

R. M. & W. O. BRADLEY, For Appellants.

DUNLAP, For Appellees.

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

The decree for distribution among the mortgagees allows much more to C. C. Storms and Nathan Storms than the mortgage constructively intended to secure to them. The alleged debt to each of them is specified in the mortgage, and no other or essentially greater debt can be allowed to either of them, consistently with the rights of the appellant and other creditors. The mortgage describes the debt to C. C. Storms as due by "a note or notes for about three hundred and fifty dollars," and the debt to Nathan Storms as "an account for about fifty dollars." This cannot be construed as including, as adjudged by the circuit court, six notes to C. C. Storms, amounting, in the aggregate, to more than fifteen hundred dollars, or notes and accounts to Nathan exceeding nine hundred dollars. If the note or notes to C. C. Storms had exceeded three hundred and fifty dollars only to a small extent, "about three hundred and fifty dollars" might have constructively embraced the actual amount; but when the excess is so enormous and incredible, about three hundred and fifty dollars must be fixed at three hundred and fifty dollars; and so, more especially, in the case of Nathan, must the debt secured by mortgage be fixed at fifty dollars. This principle, so reasonable and just, is authoritatively recognized; and, consequently, in these particulars, at least, the circuit court erred in overruling the exceptions to the commissioner's report. But, had there been no exceptions, errors so flagrant on the face of the record ought not to have been ratified by the court, whose agent's only authority was to report facts for its inspection and approval, and to facilitate, but not to dictate, its ultimate decision. This, too, is obvious and well-settled.

C. C. and N. Storms being thus not entitled, as mortgagees, to more than the mortgage recognized and identified, the secondary question arises, whether they are entitled, as insecured creditors, beyond that extent, to judgments in personam. And this will depend on the competency and credibility of the mortgagor, who is the son of one of them and the brother of the other. His wife having obtained a divorce, his testimony against her interest is competent, as it divulged no...