Hallam v. Ashford

• Decision Date: 31 October 1902
• Citation: 70 S.W. 197
• Parties: HALLAM v. ASHFORD et al.
• Court: Kentucky Court of Appeals

70 S.W. 197

HALLAM v. ASHFORD et al.

Court of Appeals of Kentucky.

October 31, 1902

Appeal from circuit court, Mercer county.

"Not to be officially reported."

Action by Oscar Hallam, as receiver of the Continental Savings, Loan & Building Company of St. Paul, Minn., against Melinda Ashford and others. From a judgment in favor of defendants plaintiff appeals. Reversed.

W. C Bell, for appellant.

Phil B Thompson, Sr., for appellees.

BURNAM J.

The appellant, Oscar Hallam, was appointed by a Minnesota court of general jurisdiction receiver of the Continental Savings Loan & Building Company of St. Paul, Minn., and was expressly authorized by the judgment of that court to collect the claim sued for in this action. Pursuant to this authority, he sought in this suit to subject the interest of the appellees, Melinda Ashford, Levy Ashford, and Mary Foster Jones, in a tract of 124 3/4 acres of land situated in Mercer county, to the payment of two notes, of $160 each, dated on the 10th day of June, 1897, executed by Levy Ashford, Melinda Ashford, and Mary Foster Jones to his company, and which were secured by a mortgage simultaneously executed on the land sought to be subjected. The defendants in their answer denied that the relief sought should be granted, on several grounds: First. They charge that the plaintiff's company has not filed in the office of secretary of state a statement, signed by its president or secretary, giving the location of its office and name of its agent thereat in this state upon whom process could be served, as required by section 571 of the Kentucky Statutes, and, in consequence of such negligence, could not maintain this suit. Second. That a receiver appointed by the court of another state could not maintain an action in this state to enforce a mortgage lien upon the real estate of a citizen of this state. Third. It is charged that on the 29th day of December, 1892, plaintiff's company loaned to one Samuel Ashford, a son of the defendants Levy and Melinda Ashford, $300, at the same time requiring him to subscribe for certain stock in the corporation, and on which Samuel Ashford paid large sums, in fines, dues, and premiums, for which he received no credit, and, by false and fraudulent representations, induced the defendants Levy and Melinda Ashford to execute a mortgage on land occupied by them, to secure said loan to Samuel Ashford, and that, after his death, plaintiff's company, by false and fraudulent representations, induced the defendants, Melinda and Levy Ashford and their daughter Mary Foster Jones to execute the notes and mortgage sued on, in lieu of the debt due by Samuel Ashford alone, and claimed that these notes were in excess of the actual balance due to the company. They also deny that either of the defendants have any interest in the land which can be subjected in this proceeding. The averments of this petition were denied by reply. And subsequently a great many amended petitions, answers, replies, and demurrers were filed, which so confuse the issues as to make it difficult to determine on what the judgment of the trial court turned. But it apparently dismissed plaintiff's petition on the ground that appellant could not, as receiver under the appointment of a foreign court, maintain this action, and that the failure of the appellant company to comply with the provisions of section 571 of the Kentucky...