Elam v. Powell

7 Ky. Op. 155, 1873 Ky. LEXIS 480

• Court: Court of Appeals of Kentucky
• Decided: October 8, 1873
• Status: Published

Opinion

Opinion by

Judge PRYOR:

The appellant by accepting surety on the renewal of the note for which a lien was retained in the deed from Beverley to Williams released his lien unless there are facts connected with the transaction showing no intention on his part to abandon it. The acceptance of a new rióte with surety or the renewal even without surety would ■manifest a disposition to abandon the lien, and if left unexplained the chancellor would so adjudge. In this case, however, it is shown by the evidence of Williams that the appellant refused to surrender his lien and in order to save it, or rather to retain evidence of the fact that such was not his intention, the note given on the renewal expressly states that it was given for this land and that the lien is retained. This court in the case of Clark v. Hunt, 3 J. J. Marshall 553, says: “The true rule of equity is, that the vendor retains his lien unless he shall have done something which evinces his intention to abandon it or have done something which manifests that he never relied on it, etc.” The chancellor has no right under this equitable principle to take appellant’s lien from him, as it clearly appears that he never intended to abandon it. The judgment of the court below is reversed and cause remanded with directions to apportion the proceeds of this land between the appellant and appellee. The appellant can only claim the amount of his original debt so far as he attempted to enforce this lien as against the rights of the appellee with the interest. In other words he is not entitled to compound interest.