Forwood v. Dehoney

68 Ky. 174, 5 Bush 174, 1868 Ky. LEXIS 240

Opinion

CHIEF JUSTICE WILLIAMS

delivered the opinion op the court:

The only question between these parties is as to priority in the proceeds of a distillery, &c., sold by appellee to Mitchell & Hall for three thousand dollars, of which one thousand was paid and a note for three hundred and seventy-five dollars executed at four months, which Dehoney assigned to Forwood, and for the remainder Mitchell & Hall gave their acceptance, but paid neither. A lien was reserved for both. .

Dehoney brought suit to enforce his lien; made For-wood a party, averring that he held the note, which was also a lien upon the distillery and fixtures, and enjoined G. M. Johnson from proceeding to sell the property under his execution, then in the officer’s hands. Subsequently, an agreement was entered of record that the sheriff should proceed to sell under said execution, but to hold the proceeds subject to the decision of the court as to priorities. The property brought but little over half the remaining unpaid purchase price, all of which was adjudged to Dehoney, and from which Forwood appealed.

As Dehoney set out the lien of Forwood, and claimed no priority over him, but did over Johnson’s execution lien, it is hard to perceive upon what principle he can claim such superior lien. As both debts were lien claims, and as Dehoney held both the debts and lien, it might be well supposed, when he assigned the note to Forwood, he assigned also the lien to pay it; and, therefore, as between Forwood and his assignor, Dehoney, he might well claim priority; but upon what principle the assignor can claim priority is not perceived. Forwood, however, only claims an equal lien and right to a pro rafa, distribution, and this he is certainly entitled to.

Wherefore, the judgment is reversed, with directions for further proceedings consistent herewith.