Johnson v. Morrison

44 Ky. 106, 5 B. Mon. 106, 1844 Ky. LEXIS 81

• Court: Court of Appeals of Kentucky
• Decided: September 27, 1844
• Status: Published

Opinion

Chief Justice Ewing

delivered the opinion of the Court.

The answer of Johnson, which is made a cross bill against all the parties, purports to be an answer to the bill of Morrison only ; and no process seems to have been taken out against any of course none other^ut Morrison was bound to notice it, or make response tb it. Morrison did answer and controvert the claims set up. As to him it has been frequently said by this Court, that the lien claimed for rent, was not available against the claims of a mortgagee. Johnson’s lienfor rent, set up and asserted long after the mortgage was executed, cannot prevail against Morrison’s mortgage. Besides, it is not shown that the claim for rent embraced by the note, is for the last years rent, nor when the rent accrued, nor whether the rent accrued for past occupation, or was a promise to pay so much for future occupation. And the landlord has a lien for only one year’s rent last past, against even execution and attachment creditors.

Nor do we think that Johnson has any right to be substituted to the lien of Swift and Robins for the amount paid by him on the replevin bond. He undertook for his principal, to pay the debt replevied-; the undertaking created no lien in his behalf, upon the property of his debtor; and though as surety, upon payment, he in equity might be substituted to any liens which the creditor, to whom he made payment, might hold against the principal debtor, because such substitution would be equitable and just; yet be has no right by substitution, to super-cede the just claims and liens of other intermediate credilors or claimants, as settled by this Court in the case of Patterson vs Pope, (5 Dana, 241.) Johnson trusted to his principal and not to the property attached, or if he looked to the latter, he acquired no lien upon it. He must, therefore, look to his principal for indemnity. Swift and Robins were entitled to both remedies to enforce payment of their debt. Other creditors have a right to their liens, subject to their prior liens, and have more equity than Johnson, who acquired no lien, to avail themselves of the extinguishment in part or whole of Swift and Robins’ debt, by the legal remedy which the law afforded them.

Goodloe for plaintiff.

The decree of the Circuit Court is affirmed with costs.