Nelson's Heirs v. Boyce &C.
| Decision Date | 04 October 1832 |
| Court | Kentucky Court of Appeals |
| Parties | Nelson's Heirs <I>vs.</I> Boyce &c. |
Appeal from the Mercer Circuit; KELLY Judge.
ON the 19th of October, 1821, Davis Caldwell conveyed a large tract of land to Joseph Morgan, J. P. Williams, and Robert Boyce, the conveyance to be void on this condition, to wit: "should the said Caldwell well and truly pay all such sum or sums for which the said Morgan, Williams, and Boyce, or either of them have bound themselves or may bind themselves as security for said Caldwell, and release and free the said Morgan, Williams, and Boyce from the whole of the debts or demands they or either of them have or may bind themselves as aforesaid, and in all respects keep the said Morgan, Williams, and Boyce, and each of them, entirely free and indemnified from all manner of damage or loss, by means of their becoming security as aforesaid, then this conveyance shall be void, &c." The preamble to the conveyance recites various obligations in which the grantees were already bound as sureties for the grantor, and then adds a clause showing that Caldwell had requested the grantees to become his sureties "generally, in all such replevin bond and injunction bonds as he, said Caldwell, may have occasion or deem it proper to give."
On the 27th March, 1823, D. Caldwell executed a deed purporting to convey to John Hughes 503 acres of the land previously conveyed to Morgan, Williams, and Boyce. The consideration of this deed is $6,539. On the same day, G. Caldwell and B. H. Perkins released to said Hughes all their claim to said land.
On the 17th December, 1825, D. Caldwell, Geo. Caldwell, and Benj. H. Perkins executed jointly, a deed to Saml. K. Nelson, for the consideration of $12,000, purporting to convey about 900 acres of the land previously conveyed to Morgan &c.
On the 21st of September, 1824, Boyce replevied a debt by becoming surety for D. and G. Caldwell, amounting to $751 27, that sum being the aggregate of the bond. This debt Boyce paid on the 25th of September, 1826, then, including interest, amounting to $841 40. To subject the land conveyed to Morgan &c. to the payment of this sum, the Caldwells having become insolvent, Boyce filed his bill.
On the 21st of May, 1823, J. P. Williams and G. A. Tomlinson, as sureties for G. and D. Caldwell, united in the execution of a supersedeas bond to Sarah Harlan. Williams, on the 15th of April, 1828, upon his responsibility thus incurred, paid $1,495 71½. To obtain indemnity and to subject the land conveyed to Morgan, &c. he made his answer to Boyce's bill operate as a bill against the Caldwells &c.
On the 15th November, 1821, D. Caldwell executed a mortgage to George Caldwell and Benj. H. Perkins, in which he conveys or attempts to do so, 1200 acres of land, on which he then resided, to secure them against loss for having become his sureties for upwards of $15,000 "in bank and otherwise."
In July, 1822, D. Caldwell's equity of redemption in the land embraced by the mortgage last aforesaid, was sold by B. Prather, a deputy sheriff, in virtue of sundry executions, and purchased by Benj. H. Perkins at the bid of $2,500.
On the 15th April, 1826, Prather executed a deed to Perkins.
The circuit court decreed the satisfaction of the demands set up by Boyce and Williams, out of the mortgaged estate, in case the money was not paid by a given day, and in case George Caldwell did not remove the incumbrance upon the estate sold and conveyed to Nelson by a day fixed, then the heir of Nelson was to be indemnified by a sale of the estate mortgaged to his ancestor by said Caldwell.
It is here contended that the decree is altogether erroneous, because the debts which Boyce and Williams have paid are not embraced by the mortgage in their favor. We are of opinion that the mortgage does embrace them. The liability of Boyce grew out of the execution of a replevin bond, a class of instruments expressly provided for by the mortgage. In regard to the demand set up by Boyce, we perceive no ground on which a plausible doubt can rest.
The bond executed by Williams was neither a replevin, nor an injunction bond technically speaking; and if the mortgage does not embrace any bond, unless it be of one or the other of these classes, executed after the date of the mortgage, then it may be admitted that the supersedeas bond executed by Williams is not embraced, and consequently no lien attached to the land to indemnify Williams. We cannot indulge in such a critical construction of the provisions of the mortgage against what seems to have been the clear intention of the parties. The title of the estate was vested by...
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