Alexander v. Ellison

• Decision Date: 04 December 1880
• Citation: 79 Ky. 148,2 Ky.L.Rptr. 49
• Parties: Alexander v. Ellison, & c.
• Court: Kentucky Court of Appeals

79 Ky. 148

2 Ky.L.Rptr. 49

Alexander v. Ellison, & c.

Court of Appeals of Kentucky.

December 4, 1880

1. Although a vendor may have a lien upon real estate conveyed by him to his son and daughter by deed of record, yet, if he announce to a third party that he had given them the land and that she might safely loan them money, and secure her loan by a mortgage upon it, and upon the faith of his statement she makes the loan and takes a mortgage, his lien will be subordinated to hers for the payment of the mortgage debt.

2. A party will not be permitted by the chancellor to lead another to believe by his assurances that land is unencumbered, and induce another to loan money upon its security, and afterwards defeat the recovery of the money by asserting a lien of his own, in existence when he advised the loan.

3. When houses situate upon joint property are falling to decay, and one tenant out of his own means makes reparation, he is not only entitled to contribution, but has a lien on the interests of his cotenants, especially if they refuse, or being under disability, are unable to consent to bear their share of the expense.

4. If a debtor has a security to which he can resort for indemnity if he be compelled to pay the debt, such security inures to the benefit of the creditor.

APPEAL FROM CUMBERLAND CIRCUIT COURT.

ALEXANDER BAKER & READ FOR APPELLANT.

1. The judgment is neither warranted by the pleadings, proof, nor prayer for relief.

2. The answers of Thos. S. Ellison and E. S. Ellison are not made counter-claims or cross-petitions against any party whatever. They ought, in this state of case, to recover nothing. (Civil Code, sec. 97, subsec. 1; Cain v. Ray, 8 Bush, 343; Anderson v. Ward, 6 Mon., 419; 14 Bush, 210; 1 Duv., 366; subsec. 4, sec. 97, Civil Code.)

3. The grantor, T. J. Ellison, consented to the mortgage to appellant. He arranged for and contrived it, and it was fully approved by him. Equity will not permit a vendor or grantor to induce others to loan money upon real estate by assertions that it was unencumbered, and afterwards assert against appellant a lien in existence when he caused the loan.

4. Mrs. Hoover alone can take advantage of her coverture. Her codefendants could not do it; besides, the property was her separate estate. (Hiram v. Griffin, 8 Bush, 264.)

5. It is a palpable fraud to have money expended upon repairs to houses, to improve the joint estate of appellees, and let Mrs. Hoover escape upon the plea of infancy. Appellant should be substituted to the lien of the adult defendant, E. S. Ellison, for these repairs, without which the property would be comparatively worthless.

HORD & TRABUE FOR APPELLEES.

1. Mrs. Hoover pleads both infancy and coverture to the first mortgage, and coverture to the second. It is also admitted by the pleadings that her interest in the property was separate estate. The mortgages, therefore, are clearly invalid. (Sec. 17, art. 4, chap. 47, Rev. Stat.)

2. Mrs. Hoover's interest in the real estate is no gift. The deed clearly contravenes the proposition.

3. But if it was a gift, the mortgages were not made with the statutory consent of the donor.

4. A power given by a deed or will to sell and convey property, does not confer the power to mortgage. (Kent's Comm., vol. 4, 331; 3 Hill, 366.)

5. The mortgage of the personalty, so far as Mrs. Hoover is concerned, is invalid. Her husband was not a party to it.

OPINION

COFER CHIEF JUSTICE:

October 24, 1872, T. S. Ellison and his wife, in consideration of " four thousand dollars hereafter to be paid to the parties of the first part by the parties of the second part, or to be accounted for by them in the final distribution of the estate of the parties of the first part, " sold and conveyed to their son, E S. Ellison, and their daughter, Ellen M. S. Hoover, then the wife of J. R. Hoover, property known and described as the " Burksville Male and Female Academy," together with all the land and appurtenances thereunto belonging. The interest conveyed to Mrs. Hoover was declared to be for her separate use.

The deed was acknowledged and recorded on the 30th of the same month, and on the first day of November of the same year, E. S. Ellison and Mrs. Hoover executed a mortgage to the appellant, Mrs. N. G. Alexander, whereby they mortgaged to her the property embraced in the deed from T. S. Ellison to secure the sum of $1,500 loaned them, as the mortgage recites, " for the purpose of repairing the Burksville Male and Female College deeded to them by Thos. S. Ellison and wife."

October 14, 1873, they executed to Mrs. Alexander a second mortgage on the same property, and on certain furniture, & c., in the building, to secure a further loan of $806.15 made to them.

To a suit by Mrs. Alexander to enforce her mortgages, Mrs. Hoover pleaded that she was an infant when she executed the first mortgage; that she was a married woman when she executed each of them, and that her husband did not unite with her in either.

T. S. Ellison being made a defendant, filed an answer, in which he stated that two thousand dollars of the consideration recited in his deed to his son and daughter--one thousand to each--was given to them as an advancement, and that the remaining two thousand was to be paid by them, and for that sum he asserted a lien on the property, which he claimed was prior and superior to any lien created by the mortgages.

In an amended pleading, Mrs. Alexander alleged, in substance, that T. S. Ellison, being the owner of the Academy property, and desirous to have a school taught therein by his son and daughter, and the daughter's husband, all of whom were professional teachers, but not being able and willing to repair and fit up the property so as to fit it for school purposes, agreed with her and his son and daughter that he would convey the property to them as an advancement, to enable them to borrow money from her to fit up the property, and that the deed to the property and the first loan and mortgage were made pursuant to that agreement. She also alleged that the second loan was made for the purpose of improving the property, and to buy furniture, & c., to refit the building, and was made with the consent of T. S. Ellison; that the money loaned by her had been used to repair, improve, and re-furnish the property, and had greatly enhanced its value, and that the property was unfit for use without the repairs, & c., made with the money borrowed from her.

While the action was pending, T. S. Ellison died, leaving a will, which was probated, and his executrix having qualified, the suit was revived against her. She filed an answer, in which she controverted the facts set forth in the amended pleading above referred to.

On final hearing, the court adjudged that the executrix had a lien prior and superior to the mortgage liens of Mrs. Alexander; that the mortgages were void as to Mrs. Hoover, except as to some personal property, and directed the real estate to be sold, and so much of the proceeds of the sale as was necessary for that purpose to be applied to satisfy the judgment in favor of the executrix, and that one half of the residue, if any, be paid to Mrs. Alexander, and the other to Mrs. Hoover.

From that judgment Mrs. Alexander has appealed.

Her counsel contend--

1. That if a lien was retained in the deed for the purchase money, the vendor cannot be permitted to set it up against her in violation of the agreement set up in her amended petition.

2. That although Mrs. Hoover may not be bound by the mortgages, still Mrs. Alexander is entitled to reach her interest in the property through E. S. Ellison, who, if he should pay the mortgage debts, will, as they contend, be entitled to a lien on Mrs. Hoover's interest to reimburse him.

The uncontradicted...