Quinn v. Coleman

2 Ky. Op. 82, 1867 Ky. LEXIS 406

• Court: Court of Appeals of Kentucky
• Decided: September 13, 1867
• Status: Published

Opinion

Opinion of the Court by

Judge Williams:

The deed from Mrs. Erazer to Jno. Hill of the land in controversy, dated in November, 1858, "recites a consideration of fifteen thousand dollars.

This deed,on petition of Erazer v. Hill, was adjudged to be a mortgage by the Superior Court of Cincinnati, Ohio, where the vendee, Hill, lived, and which had jurisdiction of his person, and to restrain him from proceeding to sell said land under said deed, or to execute the trust which it did, and said judgment and restrainiug order has never, so far as the record of said court shows, been dissolved or discharged, and Erazer, having substantially complied with the judgment of the court by paying the mortgage debts, there is no apparent reason why the injunction should be disturbed.

This injunction was in full force, so far as appears from the ' record, when John Hill, by deed dated July 11, 1863, attempted to convey this land to A. P. Hill for the recited consideration of two hundred dollars; nor has it been since disturbed, so far as appears in this record. A. P. Hill was the attorney of John Hill, negotiated the loan to Erazer, drew the deed and power of attor- • ney from the latter to John Hill, drew the answer and conducted John Hill’s defense to Erazer’s suit; therefore had full knowledge of everything in the record, and must have known that the deed of John Hill to him was in utter disregard of said injunction.

A. P. Hill claimed a fee of two hundred dollars from Erazer, and claimed that this attached to John Hill’s mortgage, • as is apparent from the latter’s answer in the Ohio suit, and we must presume that this deed from John Hill to him was for the purpose of securing this claimed fee, notwithstanding the court had rejected it as a mortgage claim, and thus to obtain an illegal advantage, he caused his client to make an illegal deed, in violation of the order of injunction, and this illegality taints all the suhsequet deeds.

The recited consideration of $200 in John Hill’s deed to A. P. Hill for premises, his deed from Prazer recited a consideration of $15,000, was sc wholly insignificant as to arouse a vigilant inquiry upon the part of even an ordinarily prudent subsequent vendee, and especially of Sower, whose deed from A. P. Hill bears the same date of John Hill’s deed to A. P. Hill.

Prazer seems to have remained in posession of the land until some of the appellees, proceeding in the Kenton Circuit Court io foreclose their mortgage on these premises made by Prazer, had the premises put into a receiver’s hands, to be rented out and the rents marshalled to pay on these mortgaged debts, Coleman having rented from the receiver, Quinn, by some means, seems to have gotten a tenant on the land after the 'court ordered it into a receiver’s hands, hut none of the vendees, from A. P. Hill down to him, seem ever to have held by possession. Miller, who seems also to be a lawyer by profession, and to have claimed' a fee of $200 from old man Prazer, appears mainly to have been instrumental in procuring Quinn, the appellant, to purchase this, land of Davis, who had purchased of Sower, not only telling Quinn that the title was good, when he knew the court had already decided that Prazer’s deed to John Hill was a mortgage, and had enjoined him from selling the premises, but concealed from Quinn the pregnant fact that John Hill only held a mortgage, which was then fully discharged, but referred him to A. P. Hill, Miller’s confederate in trying to wring from old man Prazer an unconscientious fee of $400, and thus Quinn was duped by those interested,. which need not have been had he inquired of those tenants who had the place under rent from the receiver of the Kenton Circitu Court.

The facts and circumstances should have admonished any ordinarily prudent purchaser of the situation of this title, and if Quinn, who seems to have been an unsuspecting purchaser, has been overreached by Miller or A. P. Hill, he should look to them for reimbursement, as both of these gentlemen appear rather ungracefully upon this record.

Hawkins <& Carlisle, for appellant. Stevenson & Myers, for appellees.

The Circuit Court properly discharged Quinn’s injunction and dismissed his petition.

Wherefore, the judgment is affirmed.