Monson v. Renaker

• Decision Date: 05 February 1901
• Citation: 60 S.W. 924
• Parties: MONSON v. RENAKER et al. [1]
• Court: Kentucky Court of Appeals

60 S.W. 924

MONSON v. RENAKER et al. ^[1]

Court of Appeals of Kentucky.

February 5, 1901

Appeal from circuit court, Harrison county.

"Not to be officially reported."

Action by W. T. Lafferty, assignee of W. A. Oder, against J. N Renaker and others on a promissory note. Judgment awarding to P. S. Brooks the proceeds of the note sued on, and John T Monson appeals. Affirmed.

W. T Lafferty, for appellant.

Swinford & Osborne, for appellees.

HOBSON J.

On May 26, 1893, James Matthews executed to P. S. Brooks a mortgage on a jack and certain other personal property to secure Brooks as his surety on a note for $1,200. Brooks had the debt to pay. Some time in the year 1895 Matthews made a deed of assignment to T. W. Hardy for the benefit of his creditors. Hardy, as assignee, sold publicly all the property of Matthews, including the jack referred to; but before the sale he made an agreement with Brooks that he would collect the amount the jack sold for and pay it over to him. In consideration of this Brooks agreed that he would release his mortgage lien of record upon the jack when the purchase money was paid to him. Under this arrangement the jack was sold and bought by W. A. Oder, for $280.60. Oder executed to Hardy, as assignee, a note for $280.60, with Willis Criswell as his surety. Shortly after this, and while the mortgage of Brooks on the jack was still of record and unreleased, Oder executed a mortgage on the jack and certain other personal property to J. T. Monson to secure him in a debt due him from Oder, and as Oder's surety in another debt. In January, 1896, Oder made an assignment for the benefit of his creditors to W. T. Lafferty, and Lafferty, as assignee of Oder, again sold the jack at public sale. At this sale it was bought by J. N. Renaker for $280. Renaker executed his note to Lafferty as assignee for the amount of his bid, with surety, but, learning of the condition of the title to the jack, declined to pay him, and this suit was brought to determine who was entitled to the money. The court below adjudged the money to Brooks, and Monson has appealed.

Brooks has the older equity, and in a contest between equities the older will prevail unless he has in some way lost his rights. It is insisted for Monson that Brooks, being present at the time of the sale to Oder by Hardy as assignee, and making no objection to it, is estopped to set up his mortgage against Oder. It is also...