Dunn v. Dunn

266 S.W. 25, 205 Ky. 477, 1924 Ky. LEXIS 154

• Court: Court of Appeals of Kentucky
• Decided: November 11, 1924
• Status: Published

Opinion

Opinion of the Court by

Judge McCandless

Egversing.

In October, 1916, Fannie Hawes Dunn sold and conveyed several contiguous tracts of land, aggregating 586 acres. Tbe deferred payments were evidenced by notes of different amounts, and with one exception each was secured by a lien on a separate tract, the last maturing October 9th, 1921; the purpose being to permit the vendees to sell and convey the land in parcels and have the several liens thereon released upon the payment of the purchase money on the particular tracts.

At the maturity of the last note the purchase money had been paid with the exception of $6,000.00, which was secured by a lien on two of the tracts named, which contained about two hundred acres; of these two tracts 180 acres had been sold to one Page, who assumed the $6,-000.00 indebtedness as part of the consideration, thus leaving twenty acres on which the original lien existed. Fannie Hall Dunn agreed to this, but it does not appear that she ever surrendered her original note or accepted Page’s note in settlement of the original obligation. However, she did not desire to collect this debt, and without consulting her vendee gave to Hall an extension of time on his note.

At that time all of the lands, had been sold with the exception of the 140 acres which were owned and held by Gf. E. Dunn, one of the original vendees. These consisted of the twenty acres above mentioned and an adjoining tract of one hundred and twenty acres. The latter had been encumbered by. a lien, to secure the purchase money note of $5,000.00. This was paid by Dunn, who requested the vendor to release her lien on the entire 140 acres. She did release the $5,000.00 lien on the 120 acres, but declined to release her lien on the twenty acres, which, as we have seen, was. part of the two- hundred acres encumbered by the $6,000.00 lien.

Thereupon Gr. E. Dunn brought this suit to compel her to execute such release. By an 'amended petition he offered to execute an indemnifying bond of $20,000.00' to indemnify her against loss in so doing. Bond was executed and approved by the court, and a decree entered granting the relief sought, and directing the master commissioner of the court to execute such release in the event defendant did not comply with the order of the court by a day specified. She failed to make the release, whereupon the master commissioner executed it upon the record in the county court clerk’s office.

It does not clearly appear whether the court’s ruling was based on the ground that defendant’s lien on the twenty acres was released by the extension of time she gave ¡Page on the $6,000.00 owed by him, or whether the ruling was based on the execution of the indemnifying bond, but we do not think either would justify the judgment.

Plaintiff was not a surety of Page, but the principal and original obligor; the fact that Page had assumed payment of this debt gave additional security thereon, but did not discharge that obligation. The 180 acres of land may havebeen sufficient security, possibly more than sufficient, but the original contract was not thereby changed. No estoppel is pleaded nor is it claimed that the property has. declined in value or that plaintiff’s condition has been changed by the extension of time to Page, hence, to hold that such extension operated as a release of plaintiff can only be sustained on the theory that it would constitute- payment of plaintiff’s note. Under the facts of this case this does not seem to have been contemplated by the parties.

Mrs. Dunn retained plaintiff’s note, and the subsequent transaction was from her standpoint but additional security. At the maturity of Page’s note, plaintiff could require her to enforce her lien as against Page or to release plaintiff’s lien. He gave her no notice in that respect and we cannot say that her action in granting an extension constituted payment as to plaintiff or a release of his lien.

Unquestionably the $20,000.00 indemnifying bond is sufficient security, but we are not aware of any rule of law authorizing a court to make a contract for parties or to compel a party to surrender the security acquired by contract, even though it betters her condition.

"Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion.