Curry v. Curry

9 S.W. 831, 87 Ky. 667, 1888 Ky. LEXIS 120

• Court: Court of Appeals of Kentucky
• Decided: December 8, 1888
• Status: Published

Opinion

JUDGE BENNETT

delivered the opinion op the court.

It appears from tlie weight of the evidence in this case that James Curry, by an arrangement with the appellant, borrowed of Hunter & Rowe two hundred dollars for the use of the appellant, and executed his note, secured by mortgage, for said sum; that after-wards it became desirable to make some other arrangement in reference to securing the payment of said loan so as to release the mortgage executed by James Curry to secure the payment of the loan. So, at the request of the appellant, a plan was entered into, by which the appellee, George W. Curry, A. M. Petty and others executed a joint note to Hunter & Rowe for said two hundred dollars, due and payable in twelve months from date. It was also agreed that the appellant was to give a mortgage on his land (the two hundred dollars originally borrowed having been used for the purpose of finishing paying for said land) to secure the obligors on said note.

The appellant, as appears from the exhibits filed, did, on the same day that the note was executed by the appellee, Curry, and others, execute to A. M. Petty, one of said obligors, his promissory note, due twelve months from date, for the sum of two hundred dollars ; the note recites that it was secured by mortgage. In a short time thereafter the appellant and his wife did execute a mortgage on said land to secure the payment of said note. It also appears, from the weight of the evidence, that said note and mortgage were executed to A. M. Petty for the purpose of carrying out the agreement that the appellant had made with the said obligors to indemnify them. Before the note executed to Hunter & Rowe was paid, A. M. Petty died intestate, unmarried, and without issue, whereby his father, who was living, became his heir-at-law. The father thereafter died, but, in the meantime, no administrator] was appointed to take charge of A. M. Petty’s estate, and the appellee, James N. Petty, who was managing said estate at the request of his father and for his benefit, paid off one-half of the note on which was A. M. Petty and the appellee, Greorge W. Curry, etc.; and the appellee, Curry, paid off the other half. At the time of said payment the appellant, desiring further indulgence, and it being apprehended that the land was not sufficient security, executed to the appellee, Curry, a mortgage on some personal property for the purpose of additionally securing said sum. After the death of A. M. Petty’s father an administrator was appointed on the estate of A. M. Petty, who assigned the note and mortgage which the appellant executed to A. M. Petty to the appellees, George W. Curry and James M. Petty, which assignment was made in consideration of appellees having paid off the note to Hunter & Rowe.

Although the note and 'mortgage were executed by the appellant to A. M. Petty alone, yet he held them in trust for the equal benefit of himself and co-obligors ; and said trust would enure to the exclusive benefit of any one of said obligors who might pay off said joint obligation.

It is said, however, that the appellee, Petty, was a volunteer paymaster to the extent of one-half of said debt; and, for that reason, he is not entitled to the benefit of said lien.

This position can not be sustained, for the reason, among others, that the apj)ellee, Petty, did not volunteer to pay any debt on which the appellant was bound ; he can not complain, therefore, that • the appellee intermeddled with his affairs. If it be true that he was an intermeddler in the affairs of any one for the purpose of making such one his debtor, such intermeddling related to the. estate of his brother, A. M. Petty; but the administrator thereafter, so far from treating him as an intermeddler, ratified his act and assigned to him, as an indemnity, the note and mortgage which he held as administrator on the appellant.

But James N. Curry was not an intermedcller; for it appears from the proof .that he. .-was managing the estate of A. M. Petty as the agent of his father, who was entitled to the estate as the heir of his son; and to discharge the demand upon the estate, which was being pressed for payment, . he paid one-half of the demand out of his own means, Gfeorge W. Curry, one of the obligors on the note, paying the other half. It is well-settled that an agent, who pays money out of his own pocket to protect the estate of his principal that is in his charge, is not a volunteer, and he is entitled to all the equities that his principal would be entitled to, had he paid the demand himself.

The judgment .of the circuit, court subjecting the- . land mortgaged to A. M. Petty, and the personal property mortgaged the appellee, Greorge W. Curry, to the payment of the amount paid to Hunter & Rowe by the appellees, together with interest thereon, is affirmed.