Tennis Coal Co. v. Asher & Hensley

• Decision Date: 19 April 1911
• Citation: 136 S.W. 197,143 Ky. 223
• Parties: TENNIS COAL CO. v. ASHER & HENSLEY.
• Court: Kentucky Court of Appeals

136 S.W. 197

143 Ky. 223

TENNIS COAL CO. v. ASHER & HENSLEY.

Court of Appeals of Kentucky.

April 19, 1911

Appeal from Circuit Court, Leslie County.

Action by Asher & Hensley against J. C. Napier, in which the Tennis Coal Company was made party defendant. Judgment for plaintiffs, and the Coal Company appeals. Affirmed in part and reversed in part.

Bailey P. Wootton, Jesse Morgan, and Greene & Van Winkle, for appellant.

Edelen & Davis and L. D. Lewis, for appellees.

SETTLE J.

Appellees sued J. C. Napier in the court below upon three notes--the first for $4,731, of date June 24, 1899, and due one day after date; the second for $1,000, bearing date September 29 1899, due one year after date; and the third for $200 bearing date August 22, 1903, and due one day after date. On the note of $4,731 the following payments were credited: July 20, 1903, $1,406.19; March 5, 1904, $2,429.49; August 1 1905, $205.99; August 1, 1906, $1,426.68. The note of $4,731 was executed for standing timber situated on certain lands in Harlan county, which Napier purchased of appellees by a written contract of June 24, 1899. The note was to be paid with the proceeds of the timber as sold, and its payment was secured, as expressed in the written contract, by a lien retained therein on the timber. The notes of $1,000 and $200 were executed by Napier for money furnished him by appellees, and indebtedness incurred for him by them, to enable him to get out the Harlan county timber. The payment of the $1,000 and $200 notes was secured by a mortgage on two tracts of land owned by Napier; one lying in Leslie county, and the other in Clay county. This mortgage bears date October 22, 1899, and stipulates that it was executed to secure the $1,000 note, and also "any other indebtedness second parties [appellees] may incur for first party [Napier] in a log job on Beech fork." It therefore also secured the payment of the $200 note, which was executed about three years after the mortgage was given. The mortgage, though executed October 22, 1899, was not recorded in the office of the clerk of the Leslie county court until August 22, 1903.

By a writing or title bond of date April 14, 1902, and duly recorded August 17, 1902, the Midland Coal & Iron Company became by purchase from J. C. Napier, and for a valuable consideration, cash in hand paid, owner of the mineral rights in the Leslie county land embraced by appellee's mortgage, which it shortly thereafter, for a valuable consideration then paid, sold and assigned by proper writing to the appellant, Tennis Coal Company; and on October 23, 1903, Napier by deed conveyed the Tennis Coal Company the mineral rights in the Leslie county land, which deed was immediately thereafter duly put to record in the office of the clerk of the Leslie county court. Appellant, Tennis Coal Company, was made a defendant in the action brought by appellees, as they sought in satisfaction of their several notes the enforcement of their alleged mortgage lien upon the Leslie county land, in which it owns the mineral rights.

The answer of Napier does not appear to have been made a part of the record, for which reason we cannot tell what defense he interposed to appellee's action; but the answer of appellant denied that appellees had a mortgage lien on the mineral rights in the Leslie county land as security for the payment of the notes sued on, alleged the payment by Napier of the $1,000 and $200 notes, and insisted that, if the court should adjudge that the mortgage lien covers the mineral rights in the Leslie...