Glass v. Pullen
| Decision Date | 14 December 1869 |
| Citation | 69 Ky. 346 |
| Parties | Glass v. Pullen. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SCOTT CIRCUIT COURT.
W. S. DARNABY, For Appellant,
HUNT & BECK, GEO. E. PREWETT, For Appellee,
This appeal involves a question of priority between two creditors and a question of usury.
F. H. Abbott purchased a tract of one hundred and forty-four acres of land, adjoining his home place, from W. E. Simmes, on which he still owed the last installment, with a vendor's lien, when, August 1, 1862, he borrowed of appellant Glass legal - tender United States treasury notes, and agreed to pay their nominal amount in gold, with usurious interest, and executed his several notes at one, two, three, and four years for $2,129.50 each, and gave a mortgage on the Simmes land to secure them.
Glass, it may be presumed, had not only constructive but actual notice of this outstanding vendor's lien.
Simmes having assigned to Wheat the note of $2,708.61 on Abbott, being the last payment on the land, judgment was obtained by the assignee in May, 1862, which was replevied by Crockett, as surety, July 15, 1862. Execution on the replevin bond issued in December, 1862, and was levied February 2, 1863, on both the Simmes and home tract of one hundred and forty-three acres still belonging to Abbott.
Within a week or less of this levy Pullen, the appellee, Abbott's son-in-law, advanced the money to pay Wheat the amount of his execution, and took an assignment of the same. No further effort was made to collect said execution for over two years, when, March 20, 1865, Pullen sued out another execution on the replevin bond, and had it levied on the Simmes tract, May 3d, when he indorsed on the execution "The sheriff is directed to levy this fi. fa., and return it for venditioni exponas," and there it stopped.
The same day that this execution was so levied and indorsed Pullen bought Abbott's home tract of one hundred and forty-three acres at sixteen thousand dollars, out of which he paid mortgages and encumbrances on it of some nine thousand dollars or more, over thirteen hundred dollars in cash to Abbott, and the residue of over five thousand dollars he paid the following June.
Nine days after these transactions Abbott conveyed all his property to E. H. Parish, in trust, to pay his debts, who, by agreement, sold the property October 26, 1865, when Pullen became the purchaser of the Simmes tract of land at one hundred and four dollars per acre, or near fifteen thousand dollars in gross, payable, in three equal installments, in six, twelve, and eighteen months, with interest from date.
In November, 1865, Parish as trustee filed this suit in equity to have said sale confirmed, and for a distribution of the trust funds. In this suit Pullen claims the right of subrogation to the vendor's lien because of the assignment to him by Wheat of the execution on the replevin bond against Abbott and Crockett, it being the last payment of Abbott to Simmes on said land; which Glass resists, and claims priority over Pullen because of his mortgage.
Now, to put Pullen's claim to priority in its most favorable aspect for him, concede that he had the right to purchase the execution from Wheat, and by doing so he became entitled to Wheat's equitable lien, which he held as assignor of the vendor, and that Pullen was entitled to the same rights under the same circumstances that Simmes would have been, and that the replevy of the common law judgment and...
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