Forman v. Proctor

• Decision Date: 12 January 1848
• Citation: 48 Ky. 124
• Parties: Forman, & c. v. Proctor, & c.; Wood, & c v. Proctor, & c.
• Court: Kentucky Court of Appeals

48 Ky. 124

Forman, & c. v. Proctor, & c.;

Wood, & c v. Proctor, & c.

Court of Appeals of Kentucky.

January 12, 1848

Mortgage lien. Execution lien. Landlord's lien. Rent.

ERROR TO THE MONTGOMERY CIRCUIT.

Cavan for Forman.

Cord and Apperson for Proctor and others.

OPINION

MARSHALL CHIEF JUSTICE.

Two cases come up in this record, in which a single decree was rendered; and errors are assigned applicable to both cases.

The interest of a party in property which he may perfect by the performance of an executory contract may be the subject of a mortgage or attachment in Chancery.

In the case of Wood, & c. vs Proctor, & c., which was a bill to attach the interest of Proctor in a contract by which he was to feed thirty head of cattle for a year, and at the end of the time to have one-half of the cattle for his trouble, & c. We are of opinion that the contract was executory only, and did not vest such an interest in Proctor as was liable to execution before the contract was performed and that if such an interest in a contract containing mutual stipulations, was subject to attachment for the debt of one of the parties before performance, it was still more certainly subject to be bound by the agreement of the party himself making disposition of it. Whence it follows that the mortgage of that interest by Proctor to Threlkeld and Barnes being prior in date to the attachment, created a prior equity. And although the mortgagees in their answer, do not pray for any decree, but a dismissal of the attachment, still as the real beneficiaries of the mortgage being defendants pray expressly for the appropriate relief, and as the proceeds of the cattle were in the hands of the Court's receiver, it was proper to direct their payment to the parties entitled. There is no error in this respect, to the prejudice of any of the parties, and the decree as to this matter, is affirmed. But although it might have been proper to reduce any demand of the complainants enforcible by this attachment, by crediting thereon any usury contained in it, and even the amount due from the non-resident complainant for negro hire, yet as the complainants do not make out a case for relief to any extent, and the defendant makes no independent claim--does not make his answer a cross bill, and asks no relief but by way of set-off, or reduction of the demand of the complainants, we think there was no ground for any decree on these points in favor of the defendant. The decree as to these matters, is therefore reversed, and the cause is remanded, that the bill may be dismissed.

In the case upon the bill of Porter, & c. vs Proctor, & c., in which Porter and others, mortgagees in a mortgage executed by Proctor, in February, 1843; and Threlkeld and Barnes mortgagees in a second mortgage from the same party, dated in January, 1846, and covering a part of the same property, complain that six mules and a number of hogs included in these mortgages, or one of them, had been sold under the execution of Wood, & c., against Proctor, and purchased by other persons, who are made defendants. We are of opinion-- 1st, That there is no sufficient evidence of fraud, either in taking said mortgages, or either of them, or in the subsequent conduct of the parties; and therefore, that the first mortgage being prior to any of the executions referred to, the property which it covered was not subject to...