Curry v. Curry

• Decision Date: 08 December 1888
• Citation: 9 S.W. 831,87 Ky. 667
• Parties: CURRY et ux. v. CURRY et al.
• Court: Kentucky Court of Appeals

9 S.W. 831

87 Ky. 667

CURRY et ux. v. CURRY et al.

Court of Appeals of Kentucky.

December 8, 1888

Appeal from circuit court, Adair county; D. R. CARR, Judge.

Action by George W. Curry and others against John S. Curry and his wife, to recover on a promissory note executed by defendant and to foreclose two mortgages on real and personal property executed by defendants to secure payment of said note. Judgment for plaintiffs. Defendants appeal.

Montgomery & Jones, for appellants.

H. C Baker, for appellees.

BENNETT J.

It appears from the weight of the evidence in this case that (by an arrangement with the appellant) James Curry borrowed of Hunter & Rowe $200 for the use of the appellant, and executed his note, secured by mortgage, for said sum; that afterwards it became desirable to make some other arrangement in reference to securing the payment of said loan so as to release the mortgage executed by James Curry to secure the payment of the loan. So, at the request of the appellant, a plan was entered into by which the appellee George W. Curry A. M. Petty, and others executed a joint note to Hunter &amp Rowe for said $200, due and payable in 12 months from date. It was also agreed that the appellant was to give a mortgage on his land (the $200 originally borrowed having been used for the purpose of finishing paying for said land) to secure the obligors on said note. The appellant, as appears from the exhibits filed, did, on the same day that note was executed by the appellee Curry, and others, execute to A. M. Petty, one of said obligors, his promissory note, due 12 months from date, for the sum of $200. The note recites that it was secured by mortgage. In a short time thereafter the appellant and his wife did execute a mortgage on said land to secure the payment of said note. It also appears from the weight of evidence that said note and mortgage were executed to A. M. Petty for the purpose of carrying out the agreement that the appellant made with the said obligors to indemnify them. Before the note executed to Hunter & Rowe was paid, A. M. Petty died intestate, unmarried, and without issue; whereby his father, who was living, became his heir at law. The father thereafter died, but in the mean time no administrator was appointed to take charge of A. M. Petty's estate, and the appellee James N. Petty, who was managing said estate at the request of his father, and for his benefit, paid off one-half...