Brill v. Rack

• Decision Date: 03 October 1893
• Citation: 23 S.W. 511
• Parties: BRILL v. RACK.
• Court: Kentucky Court of Appeals

23 S.W. 511

BRILL v. RACK.

Court of Appeals of Kentucky.

October 3, 1893

Appeal from chancery court, Pendleton county.

Action by George Brill against Fred Rack to cancel a chattel mortgage. From a decree in defendant's favor, plaintiff appeals. Affirmed.

John H. Barker, for appellant.

Leslie T. Applegate, for appellee.

BENNETT, C.J.

The appellant bought the appellee's bakery and fixtures at an agreed price, and gave his note for the deferred payment, and executed a mortgage on said bakery and fixtures to secure the payment of the note. This suit is brought to set aside the mortgage upon the ground that the contract was obtained by the appellee's fraud; but the mortgage is not attacked as having been obtained by fraud. The sole question is, can the mortgage be set aside upon the ground that the contract was obtained by fraud without also seeking to set aside the contract, but permitting it to stand in full force? The mortgage was given to secure the payment of the debt, and, as long as the debt stands in full force, the security ought likewise to stand in full force, unless that is attacked for fraud. To allow the appellant's contention, the case would stand thus: The contract would stand in full force, and the mortgage would be set aside, and the appellant would dispose of the mortgaged property, and the appellee go whistling for his money. The judgment is affirmed.