Honore's Ex'r v. Bakewell

• Decision Date: 25 September 1845
• Citation: 45 Ky. 67
• Parties: Honore's Executor v. Bakewell et al.
• Court: Kentucky Court of Appeals

45 Ky. 67

Honore's Executor v. Bakewell et al.

Court of Appeals of Kentucky.

September 25, 1845

Vendor and vendee. Lien. Notice. Diligence.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

Pirtle, and Morehead & Reed for appellant.

Duncan and Guthrie for appellees.

OPINION

EWING CHIEF JUSTICE.

Case stated

IN 1826, John A. Honore sold and conveyed to Bell and Barbaroux two lots in Louisville, for $12,500, payable in twelve years, with interest on said sum at the rate of six per cent. per annum, payable quarter yearly. The consideration and terms of payment were expressed on the face of the deed. In 1828, Barbaroux sold and conveyed his interest in the purchase to Bell, and Bell afterwards, in 1828, sold and conveyed a designated parcel of said lots to Wm. G. Bakewell, for $4,500, payable in five annual installments, with interest. The deed made by Bell to Bakewell, recites the terms of sale, and that Honore held a lien on the property, and contains three alternative stipulations: First. That Bakewell, if he elects to do so, for his indemnification, may pay to Honore the consideration of his purchase, provided he procures from Honore an acquittance to said Bell, for the amount. 2nd. That he may pay to Bell, relying upon his warranty, if he desires to stop the accruing interest. 3rd. If Honore will not receive the pay and release said ground from the lien, that Bakewell, for his indemnity, shall have the privilege of withholding the principal until his title can be secured, paying interest on the amount semi-annually, to said Bell.

Bakewell elected to make payment to Honore, and executed his note or notes to him for the amount, and Honore executed his acquittance to Bell, crediting the amount on his demand against him.

The note or notes of Bakewell to Honore, were renewed from time to time, until the amount, by payments, was reduced to $2,400, and a note for that balance was executed by Bakewell to Honore on the 28th December, 1841, payable four months after date. On one occasion, prior to the execution of this last note, Bakewell paid, in cash, about one-half of the amount then due, and gave a check to the Bank for the residue, which Honore retained a few days without presenting it to the Bank for payment, and returned it to Bakewell, and the check, by mututal consent, was cancelled, and Bakewell's note given for the amount, which by renewals, produced the note in question.

In 1842, Bakewell being much embarrassed and about to fail, executed a mortgage deed to A. & O. Hite, on the parcel of ground sold to him, and on other real and personal estate, to secure them a debt which he owed them, and to indemnify and secure them as his sureties and accommodation indorsers to the Bank of Kentucky, the Northern Bank and other Banks in and out of the State. Honore filed his bill, which after his death was revived in the name of his executor, asserting his lien upon the parcel of ground for the amount of the note as the unpaid consideration. A. & O. Hite answered, making their answer a cross bill against the complainants, Bakewell and the Banks, resisting the lien, and praying a foreclosure and sale of the mortgaged estate in payment of their debts and in discharge of their liabilities.

The Chancellor disallowed Honore's lien and dismissed his bill, and decreed upon the cross bill a foreclosure and sale of the mortgaged estate as prayed for, and Honore's executor has appealed to this Court.

It is contended, 1st. That Honore, by his acquittance to Bell, discharged his lien upon the parcel of ground in question, springing out of the sale to Bell and Barbaroux, and that the law implied no lien in his favor for the consideration of Bakewell's purchase. 2nd. That if a lien would be implied in his favor, that that lien was waived and lost forever by the receipt of the check which was afterwards surrendered and cancelled. And 3rd. That if the lien was not waived, that A. & O. Hite had no notice of it, nor the means to acquire notice.

Deceree of the Chancellor.

1st. There is no question that Honore, by his acquittance to Bell surrendered his lien to the extent of his acquittance on his original sale to Bell and Barbaroux; but we are clearly of opinion that upon the sale by Bell to Bakewell, and the election on the part of the latter of the alternative stipulation in the deed, to pay Honore the consideration of his purchase, and his assumpsit to pay and the acquiescence in the arrangement, by Honore, and his acceptance of Bakewell's assumpsit and acquittance of Bell from the amount, a lien on the parcel purchased by Bakewell, was raised in his favor for the amount of the consideration so assumed to be paid to him. Had Bell received Bakewell's notes for the consideration, a lien would be implied in his favor; and had those notes been assigned to Honore as payment of so much and an acquittance for the amount executed to him, as assignee of Bell, Honore would certainly have held a lien on Bakewell's purchase for their payment; and had these assigned notes been lifted and other notes, in the form of renewals executed in their stead, though such renewal might have had the effect to discharge Bell from his liability on the assignment, they could not have had the effect to discharge Bakewell or his purchase from that responsibility to which he and it were before subject. The debt which was the consideration of his purchase, was not paid or satisfied by the renewal of notes, which amounted to no more than the renewal of the evidence of a debt which, as the unpaid consideration of the sale and purchase, operated as a lien upon the...