McMurtry v. Montgomery Masonic Temple Co.

Decision Date27 October 1887
Citation5 S.W. 570,86 Ky. 206
CourtKentucky Court of Appeals

Appeal from circuit court, Montgomery county.

Turner & Son, for appellant.

Wm Lindsay, for appellees.


Appellant McMurtry, instituted this action in equity against appellees the Montgomery Masonic Temple Company, a corporation, James M. Jones, administrator of D. B. Jones, E. S. Apperson executrix of R. A. Apperson, Jr., and in her own person Lewis De Bard, and James Turley, praying for a sale of a building and grounds alleged to be the property of said corporation, and held in trust by E. S. Apperson for the benefit of its creditors, for the payment of the proceeds of such sale when made to appellant in satisfaction of an alleged balance due to him by it, for a settlement of the affairs of the corporation, its dissolution, and for general and special relief. The allegations of the petition and amended petition, to both of which a general demurrer was sustained, are in substance as follows: That, in pursuance of a contract between appellant and the corporation, he constructed said building, worth, at the contract price, $33,972.35, of which $30,053.96, and no more, has been paid, leaving due and unpaid the sum of $3,918.39, and interest thereon from January 1, 1871. That subsequent to that date Rankin & Co. instituted an action in the Fayette circuit court, to recover of him $600, value of labor done and materials furnished for said building, to which action said corporation was made a defendant, its alleged indebtedness to McMurtry being attached, and in that action it was adjudged that said corporation was indebted to appellant the sum mentioned, $3,918.39; but, as it had not been served with summons in Fayette county, the only judgment rendered against it was in favor of Rankin & Co. for $600. It is further alleged by the appellant that, by authority under its charter, the corporation issued bonds, which were a lien upon its property, to pay for the completion of said building, a part of which were issued and made payable in 1880. He says he does not know how many of such bonds were issued and sold, but has been informed and states that only two were actually sold and accounted for, netting the sum of $2,000, and only $10,000 thereof were actually executed for sale, the other $8,000 being held by L. De Bard and R. Apperson, Jr., to indemnify them for money advanced to the corporation and securityship for it. That November 10, 1875, after the bonds mentioned were issued, said corporation mortgaged the building, and lot on which the same is located, to James Turley, L. De Bard, and R. Apperson, Jr., to secure them in the debts and liabilities named in the mortgage. That November 22, 1875, the mortgagees instituted an action to subject the property to the payment of alleged indebtedness to them, and under judgment rendered therein the property was sold, January 17, 1876, and purchased by R. Apperson, Jr., at the price of $11,000, the sale being made subject to the bonds owned by De Bard and Jones, without fixing the number of the bonds, the amount, or the time of the payment thereof. He further states that said De Bard, Turley, and Apperson were, at and prior to the time of said sale, directors and the managing agents of the corporation, and, as a building committee, attended to its business from its organization until its sale. That the property was worth at the time it was sold at least $25,000, and Apperson was one of the attorneys for the plaintiffs in the action for the sale. That in January, 1878, R. Apperson, Jr., died, and subsequently, without an order of revivor, the master...

To continue reading

Request your trial
5 cases
  • Worthen v. Griffith
    • United States
    • Supreme Court of Arkansas
    • November 3, 1894
    ...Iowa 666; 1 Spear's Eq. (S. C.) 545; 70 id. 697; 7 A. 514; 16 Iowa 284; 80 Iowa 291; 1 Watts, 385; 60 Pa.St. 314; 78 Va. 737; 47 Conn. 54; 86 Ky. 206; 6 Conn. 90 Mich. 345; 35 F. 161. The last case is an indorsement by directors. 2. The validity of the assignment is not affected by the fact......
  • Broussard v. Mason
    • United States
    • Court of Appeals of Kansas
    • February 15, 1915
  • Thompson v. Brownlie
    • United States
    • Court of Appeals of Kentucky
    • October 13, 1903
    ...... especially to judicial sales. McMurtry v. Montgomery,. etc., Co., 86 Ky. 206, 5 S.W. 570. . . ......
  • Rylander v. Sheffield
    • United States
    • Supreme Court of Georgia
    • July 20, 1899
    ...make unconditional and unrestricted use of legal means open to outside creditors, "—citing Harts v. Brown, 77 Ill. 226; McMurtry v. Temple Co., 86 Ky. 206, 5 S. W. 570; Hal-lam v. Hotel Co. (Iowa) 9 N. W. 111. It does not appear from the record in this case that the defendants in error soug......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT