Simpkinson v. Sanders

• Decision Date: 04 February 1888
• Citation: 7 S.W. 32
• Parties: SIMPKINSON et al. v. SANDERS et al.
• Court: Kentucky Court of Appeals

7 S.W. 32

SIMPKINSON et al. v. SANDERS et al.

Court of Appeals of Kentucky.

February 4, 1888

Appeal from circuit court, Owen county.

Action by J. & A. Simpkinson & Co. against W. L. Sanders, and J. S Phelps & Co. Plaintiffs having obtained a judgment against W L. Sanders, on which execution had issued and been returned "no property found," filed this petition against defendants, alleging that Sanders possessed money, etc., and praying a discovery of same, and that it be applied to satisfy their judgment. Petition also alleged that Sanders had executed certain fraudulent mortgages to J. S. Phelps &amp Co., making them parties to action, and asked that these mortgages be set aside. Plaintiffs took deposition of Sanders and of one Davis, agent of Phelps & Co., both, however testifying that mortgages were executed for adequate and valuable consideration. Sanders also disclosed that he held certain promissory notes due to himself. Petition of plaintiffs was dismissed, and mortgaged property ordered to be sold to satisfy mortgages of Phelps & Co., as they had asked in their cross-petition. Plaintiffs appeal.

J. W. Greene and C. Strother, for appellants.

Hargis & Eastin, for appellees.

PRYOR C.J.

We perceive nothing in this record to contradict the sworn statements of Sanders and Davis, who were called on by the plaintiff to testify as to the validity of the mortgages made to Phelps & Co., and whose testimony must be held as conclusive on that branch of the case. Slight circumstances that at best amount to only a suspicion of unfairness, should not be permitted to convict both Davis and Sanders of perjury, by reason of their testimony. Besides, while Sanders may not have satisfactorily explained the extent of his losses, and the manner in which these losses were settled, Davis swears that the money was loaned in each instance when the mortgages were executed; and there is no reason to doubt the truth of his statement. His interest in the result of the litigation might affect the weight of his testimony if there was any evidence of a substantial character conflicting with the history he gives of the two transactions; but as there is none, and being the witness for the appellant, and making, so far as this record shows, a full disclosure of the business relations between himself and Sanders, the chancellor acted properly in subjecting the mortgaged property to the payment of all the liens upon it,...