Wicks v. McConnell

• Decision Date: 13 November 1897
• Citation: 43 S.W. 205,102 Ky. 434
• Parties: WICKS et al. v. McCONNELL.
• Court: Kentucky Court of Appeals

43 S.W. 205

102 Ky. 434

WICKS et al. v. McCONNELL.

Court of Appeals of Kentucky.

November 13, 1897

Appeal from circuit court, Breathitt county.

"To be officially reported."

Consolidated actions by Wicks Bros. and others against Valley & Son involving a contest as to priority of liens. Judgment in favor of James McConnell, and Wicks Bros. appeal, and Stidham files cross appeal. Affirmed.

E. W Hines, J. M. Benton, and J. B. Marcum, for appellants.

J. J C. Bach, for appellee.

DU RELLE, J.

In August, 1893, appellants, Wicks Bros., sold to Valley & Son some $1,400 worth of machinery, and the latter firm executed an instrument such as, in the case of Baldwin v Crow, 86 Ky. 680, 7 S.W. 146, and other cases, has been held to have the effect of a mortgage back to the vendor to secure the unpaid purchase money. This instrument was not recorded. For the purpose of paying the freight on the machinery, and putting it in running order, Valley & Son obtained a loan from appellee, McConnell, of some $475 representing, as claimed by him, that they were the absolute owners of the property, and that the title thereto was unincumbered. He further claims that he examined the records in the county clerk's office in search of liens against the property, and failed to find any evidence of the existence of any lien; that Valley & Son at the time offered to give him a mortgage, which he thought it unnecessary to take, as they were abundantly solvent, if they were the owners of the property. His debt not being paid at maturity and Valley & Son in the meantime having become indebted to other parties, he instituted an attachment suit, and had his attachment levied upon the property in question. McConnell's attachment, and an attachment sued out by Stidham, who is a cross appellant here, were the first levied of several attachments issued about the same time. It appears that while these suits were pending Wicks Bros. instituted a suit to enforce their lien for the unpaid purchase money, to which suit McConnell and Stidham were made parties on their petition, and their attachment suits, as well as the suits of other attaching creditors, were consolidated with it. Before the filing of the suit by Wicks Bros., Valley & Son, during the pendency of the attachment suits, executed a mortgage to Stidham, to secure his and McConnell's claims. The attachments were subsequently sustained, and McConnell's claim adjudged to be prior in lien to that of appellants. Stidham's claim, having been created prior to the purchase of the property by Valley & Son, was adjudged inferior. Section 496, Ky. St., being the same as section 10, c. 24, Gen. St., which provides: "No deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration without notice thereof, or against creditors, until such deed shall be acknowledged or proved according to law and lodged for record," has been frequently construed by this court; and, as said by Judge Lindsay in Low v. Blinco, 10 Bush, 334, the decisions thereon are singularly inconsistent with each other. Without reviewing those cases,-which has been done in the case last referred to, and in Baldwin v. Crow, 86 Ky. 680, 7 S.W. 147,-it may be said that in the case last named, which is the latest authoritative utterance of this court upon the subject, a distinction was clearly recognized between the position of an execution or attachment creditor without notice of an unrecorded mortgage lien, whose debt was created antecedent to the creation of the lien, and the position of one whose debt was created subsequently. Said Judge Lewis in that case: "If the...