Mallory v. Dauber's Ex'r

• Decision Date: 06 October 1885
• Parties: Mallory v. Dauber's Ex'r.
• Court: Kentucky Court of Appeals

83 Ky. 239

7 Ky.L.Rptr. 243

Mallory v. Dauber's Ex'r.

Court of Appeals of Kentucky.

October 6, 1885

APPEAL FROM LOUISVILLE CHANCERY COURT.

E. E MCKAY FOR APPELLANT.

1. The judgment should have perpetuated the injunction, without sale or further order, because the execution was not levied subject to the incumbrances, as it should have been levied. (Act of 1828, 1 Stat. Laws, 653; 1 Rev. Stats., page 327; General Statutes, pages 256, 435; Forest v. Phillips, 2 Met., 197; Campbell v. Woolridge, 6 Bush, 324; Atkins v. Emerson, 10 Bush, 12.)

2. If a sale is made appellant is entitled to the full benefit of the liens released to him, and not merely to the extent of the amount paid by him for them. (Addison v. Crow, 5 Dana, 276; General Statutes, page 256; Mosier's Appeal, 56 Pa. St., 76; Valle v. Fleming's Heirs, 29 Mo. 162; Peltz v. Clarke, 5 Peters (U S.), 483.)

3. The Louisville Chancery Court has jurisdiction to enjoin proceedings on a judgment of the Jefferson Court of Common Pleas. (Bullitt's Code, sections 17, 768, 777; Myers' Code, section 314; Myers' Supplement, pages 560, 770; Rudd v. Woolfolk, 4 Bush, 559.)

4. The bond executed by appellant did not discharge the levy. (Subsections 1 and 3, section 278, Civil Code.)

R. W WOOLLEY, JAMES HARRISON FOR APPELLEE.

1. The releases by the mortgagees re-invested the title in the mortgagor, and enlarged the estate subject to the execution lien. (Dengman v. Randall, 13 Cal. 512; Stearns v. Godfrey, 16 Maine, 162; Campbell v. Carter, 14 Ill. 286; Boyd v. Parker, 43 Md. 203; Gannor v. Eldridge, 1 Greenleaf, 145; Woollens v. Hellen, 9 Gill. (Md.), 192; Somers v. Skrivner, 3 Pick., 55.)

2. A volunteer purchaser will not be subrogated to the rights of mortgagees whose debts he voluntarily pays. (3 Paige, 117; Sandf., 384; 8 Leigh, 588; 10 Sergt. & R., 399.)

3. The Louisville Chancery Court had no jurisdiction to enjoin proceedings on a judgment of the Jefferson Court of Common Pleas. (Civil Code, section 285.)

OPINION

PRYOR JUDGE:

L. S Hardin, for the purpose of securing several of his creditors, executed to them a mortgage on his real estate in the county of Jefferson, the mortgage debts amounting to near $15,000.

The appellee, a judgment creditor, had an execution issued on his judgment, and while in full force placed it in the hands of the sheriff of Jefferson county.

The appellant, Mallory, after the execution came to the officer's hands, by some arrangement with the mortgagees and the debtor, purchased the realty for six thousand dollars, the mortgagees releasing their liens for the balance of their mortgage debts. After the release was entered, the judgment creditor levied his execution on the realty, or, perhaps, had levied it before the release (but whether before or after is immaterial), and proceeded to sell the property to satisfy his debt. The judgment was rendered in the Common Pleas court, and the appellant, Mallory, claiming to be the absolute owner, obtained an injunction from the Chancellor staying proceedings on the judgment sought to be enforced until the matters alleged for his injunction could be heard and determined.

The lien in behalf of the execution creditor existed prior to the purchase by the appellant, and, therefore, remained in force until the land was sold, or some act done by the plaintiff in the execution or the sheriff that released it. No such state of case has been made to appear, but, on the contrary, while the execution creditor was attempting to enforce his judgment, the appellant made his purchase, and when the actual levy was made had obtained his deed. He was a purchaser in contemplation of law, with notice of the lien by the appellee, and bought subject to it.

When the property was sold or the levy made, all the mortgage had been released except six thousand dollars, the amount of the purchase by the appellant. The release was made in the ordinary way by an entry on the margin of the deed book releasing the lien. The mortgage lien had then been reduced to six thousand dollars, and, therefore, the execution creditor could have sold subject to that lien. It is urged, however, by the appellant, that inasmuch as the lien for fifteen thousand dollars existed when the execution lien was created, therefore the sale should have been made subject to the lien for the entire amount. If the debtor had satisfied the debt except six thousand dollars, or the creditor before the sale had released his lien except as to the six thousand dollars, we know of no rule of law or equity that would require the unsecured creditor to sell subject to a lien that did not exist.

The appellant maintains further that the release was for his benefit, and doubtless such was the case. He was not aware of the execution lien, or, if so, failed to provide against its effect. The appellant did not purchase the notes from the mortgagees. There was no assignment from them to the appellant of the balance of the claim, nor is there any proof showing that he was to have the benefit of the claims in any way. It was an absolute unconditional release of the lien with the notes doubtless surrendered to the original debtor. The mortgagees have not testified in the case, and the only witness is the appellant, who says the release was for his benefit. This must have been the case so as to give him a perfect title, but it is not pretended or proved that he became the owner of the balance of the indebtedness, or that he is now the owner. The mortgagees agreed that they would release...