Jump v. Johnson

• Decision Date: 22 May 1890
• Citation: 13 S.W. 843
• Parties: JUMP v. JOHNSON.
• Court: Kentucky Court of Appeals

13 S.W. 843

JUMP v. JOHNSON.

Court of Appeals of Kentucky.

May 22, 1890

Appeal from circuit court, Hardin county.

"To be officially reported."

Jas Montgomery, for appellant.

J P Hobson and Brown & Haycroft, for appellee.

BENNETT J.

The appellant, Henry Jump, and William Bird, as principals, and Eliza S. Monin as surety, executed their note to the appellee for $2,000, borrowed money, which note was due and payable 12 months after date, and bore 10 per cent. interest from date until paid. The note bore date the 29th day of August, 1876. The appellant and Bird mortgaged their respective lands to Eliza S. Monin to secure her as their surety on said note. The mortgage was dated and acknowledged on the 29th day of August, 1876. The appellee, in the spring of 1884, recovered judgment for the balance due on this note, and for the enforcement of Eliza S. Monin's mortgage lien to satisfy said judgment. There was no defense to this proceeding. The appellant, however, pleaded that he had paid half of the note, including interest, which, by an arrangement between him and Bird, was all, as between them, he should pay; and he asked the court to order Bird's land to be first sold to satisfy the balance of the debt, interest, and cost. To this Bird, by his answer, assented. Accordingly the court ordered the land of Bird to be first sold; and, if it did not bring enough to satisfy said balance, etc., then the appellant's land was to be sold to satisfy the deficiency. Bird's land was first sold, and it brought an amount supposed to be sufficient according to the calculation of the commissioner making the sale, to satisfy said balance and cost. Bird himself bought the land, and the appellant was one of his sureties on the sale-bond. After the confirmation of the sale and collection of the purchase money, it was ascertained that the commissioner, by a miscalculation, fell short of the correct balance due by about $251. Consequently, Bird's land did not sell for enough to satisfy said balance by that sum. Bird being dead, and his estate being insolvent, and said land having been sold by his heirs and purchased by the appellant, the appellee, upon notice,--the case still being upon the docket,--moved the court to order the sale of so much of the appellant's land as would satisfy said balance. The court, notwithstanding the objections of the appellant, made said order.

The first objection is that, as the...