Andrews's Adm'r v. Dudley's Assignee

Court of Appeals of Kentucky

Andrews's Adm'r v. Dudley's Assignee

9 Ky. Op. 279, 1877 Ky. LEXIS 158

DecidedJanuary 17, 1877

StatusPublished

This text of 9 Ky. Op. 279 (Andrews's Adm'r v. Dudley's Assignee) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andrews's Adm'r v. Dudley's Assignee, 9 Ky. Op. 279, 1877 Ky. LEXIS 158 (Ky. Ct. App. 1877).

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Opinion

Opinion by

Judge Lindsay:

Although it is alleged that Cord purchased at the assignee’s sale, for the sole purpose of ascertaining the value of the mortgaged property that he might credit the note against the bankrupt for that sum, it is also averred that the assignee denied and repudiated the appellant’s mortgage lien, and instead of concurring with Cord in this object, claimed and exercised the right of selling the absolute title to the lot, unencumbered by the lien herein asserted. There was, therefore, no contract, between Cord and the assignee, for the state courts to specifically enforce.

If the mortgage herein set up was valid" and enforceable, Cord might have pursued one of the courses. He could have agreed' with the assignee as to its value, have taken the assignee’s release, and then presented and proved his claim in the bankrupt court for the unpaid balance. If the assignee would not agree, he could have asserted his lien in the bankrupt court, and have had the lot sold in such manner as that court might have directed. Or he could have declined to appear in the bankrupt court altogether, unless forced into it by the assignee, and instead thereof proceeded to foreclose his mortgage in the state courts.

Sec. 20, Bankrupt Act, and Second Nat. Bank of Louisville v. National State Bank of New Jersey, 10 Bush 367.

W. H. Cord, for appellants. L. B. Cox, for appellee.

Instead of pursuing one of these courses, he has complicated his rights by purchasing at the assignee’s sale. Until this purchase is cancelled he cannot ask to have the mortgage enforced, and if he desires to have the amount of his bid credited on this note he holds against the estate of the bankrupt, he must get that relief at the hands of the bankrupt court which has undertaken to, and is now engaged in administering the assets in the hands of its officer, the assignee.

This is a question with which the state courts will not interfere even with the consent of the assignee.

Judgment affirmed.

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Opinion by

Judge Lindsay:

Although it is alleged that Cord purchased at the assignee’s sale, for the sole purpose of ascertaining the value of the mortgaged property that he might credit the note against the bankrupt for that sum, it is also averred that the assignee denied and repudiated the appellant’s mortgage lien, and instead of concurring with Cord in this object, claimed and exercised the right of selling the absolute title to the lot, unencumbered by the lien herein asserted. There was, therefore, no contract, between Cord and the assignee, for the state courts to specifically enforce.

If the mortgage herein set up was valid" and enforceable, Cord might have pursued one of the courses. He could have agreed' with the assignee as to its value, have taken the assignee’s release, and then presented and proved his claim in the bankrupt court for the unpaid balance. If the assignee would not agree, he could have asserted his lien in the bankrupt court, and have had the lot sold in such manner as that court might have directed. Or he could have declined to appear in the bankrupt court altogether, unless forced into it by the assignee, and instead thereof proceeded to foreclose his mortgage in the state courts.

Sec. 20, Bankrupt Act, and Second Nat. Bank of Louisville v. National State Bank of New Jersey, 10 Bush 367.

W. H. Cord, for appellants. L. B. Cox, for appellee.

Instead of pursuing one of these courses, he has complicated his rights by purchasing at the assignee’s sale. Until this purchase is cancelled he cannot ask to have the mortgage enforced, and if he desires to have the amount of his bid credited on this note he holds against the estate of the bankrupt, he must get that relief at the hands of the bankrupt court which has undertaken to, and is now engaged in administering the assets in the hands of its officer, the assignee.

This is a question with which the state courts will not interfere even with the consent of the assignee.

Judgment affirmed.

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Bluebook (online)

9 Ky. Op. 279, 1877 Ky. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrewss-admr-v-dudleys-assignee-kyctapp-1877.

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