Morrison's Adm'Rs &C. v. Beckwith
| Decision Date | 20 January 1827 |
| Citation | 20 Ky. 73 |
| Court | Kentucky Court of Appeals |
| Parties | MORRISON'S ADM'RS. &C. <I>vs.</I> BECKWITH. |
Error to the Shelby Circuit; HENRY DAVIDGE, Judge.
[Absent Ch. Justice BIBB.]
JOHN and Upton Beck with exhibited this bill, to be relieved against two judgments at law, of five hundred dollars each, obtained against them by the plaintiff in error, Churchill, on two notes executed by them to Hugh Morrison, one of which was assigned to Churchill, directly, the other was assigned by Morrison to Levi Tyler, and by him to Churchill. The injunction was dissolved, pending the bill, as to both these judgments, and was reinstated as to one of them, by two of the judges of this court, and on the final hearing, it was dissolved as to that also; but by the decree, Churchill was not allowed to take out execution, until he entered into bond in the clerk's office, with surety approved by the clerk, conditioned to refund the money, if the lot for which the notes were given, was ever lost or taken away by any claim superior to that sold and conveyed by Morrison to the Beckwiths. To reverse this decree, Churchill has prosecuted this writ of error.
We need say nothing of the decree as it respects one of the notes and judgments, as in this, Churchill has been successful, and was entitled to be so; because it is shewn that he purchased that note from Morrison, under a full assurance from the Beckwiths that it should be paid, and it has been so often held that the obligor or payor of a note, may bar any equity which he may have against the obligee, by inducing the assignee to purchase it, or by first flattering him with assurances that it would be paid, that it is now unnecessary to cite authorities to prove the doctrine. Besides of this part of the decree, Churchill cannot, and does not complain.
The equity by which the payment of the second and last note is resisted, is the question which claims our attention. Various grounds are stated in the bill, but all except one, is controverted by the answer and not made out in proof, and therefore they need not be noticed. This one is simply this. The note was given by Beckwiths to Morrison as one, and the last, instalment due for a lot of ground in Louisville, the title of which lot had been conveyed by Sarah Beard to Fortunatus Cosby, and from Cosby transmitted by sundry mesue conveyances to Morrison, and by Morrison to the Beckwiths; and in this last sale it was estimated at $2500 or $3,000. The prices, at which it passed in previous sales does not appear, nor by what kind of warranty. When Sarah Beard conveyed it to Cosby, it was part of a large estate conveyed at the same time, the whole of which, together with the other estate, was forthwith mortgaged to her by Cosby to secure the purchase money. The representatives of Sarah Beard, she having departed this life, and Cosby, who are made parties to this suit, both acknowledge that this mortgage is discharged, except a small sum, perhaps not quite equal to the note now in contest. This sum, Cosby says he would have paid, but Sarah Beard's representatives declined to receive it, till the event of some contest about the estate or part of it, depending in the Federal court is determined, and Mrs. Beard's representatives likewise allege, that they have concluded not to receive it, and thus the mortgage for this small balance, is suffered to sleep between them. To guard against the consequences of this, Churchill was not allowed execution till he executed his bond of indemnity.
It is evident that the decree cannot be right. For upon what principle Churchill, who was no party to the contract between Morrison and the Beckwiths, could be forever kept from his money, unless he would bind himself for the title sold by Morrison, is hard to be discovered. He is but the holder of the note as assignee, claiming his money first from the makers of the note, and secondly from his assignor and by the decree he is forever barred from doing either. A perpetual injunction would be a preferable attitude; and we conceive that Churchill might sustain his writ of error, to reverse the decree, even if the inevitable consequence were a perpetual injunction.
But it is insisted, that no injunction, either perpetual or temporary, ought to be granted, because the contract of Morrison with the Beckwiths has been executed on the part of Morrison, and that Morrison has conveyed with a covenant of warranty and seizin, and therefore, the Beckwiths ought to be compelled to rely on their remedy on the warranty, and not to detain any part of the...
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