Smith v. Warth

5 Ky. Op. 269, 1871 Ky. LEXIS 369

• Court: Court of Appeals of Kentucky
• Decided: December 16, 1871
• Status: Published

Opinion

OpinioN by

Judge PeteRs :

It appears by a decided preponderance of the evidence that the land in controversy with the part adjoining it conveyed by the co-devisees of Henry Spears to him was purchased by the executors of, and paid for with the means belonging to, the estate of Christopher Spears, the father of Mrs. Henry Warth, wife of Abram Warth, deceased, and that he entered on the land with his wife, and in her right, under some arrangement with the executors, and the other devisees of her father, and having entered upon the land and resided on it — with his wife — he could not, while thus occupying, set up an adverse claim to hers successfully. But the evidence is that he claimed it as her land, he had therefore only a life estate as tenant by the curtesy, and nothing more passed by his deed of mortgage to appellant's testator.

It appears in the record that a personal judgment had been previously tendered against David Warth and James Warth, original obligators in the first note to Boulden, and Peter Smith loaned the $4,000 to Abram Warth to pay the unpaid balance of that debt, which judgment would be as available to appellants as a second one for the same demand.

No exceptions were taken by appellant to the opinion of the court below in overruling his exceptions to the commissioner’s report of the settlement of Abram Warth’s estate, and in the absence of any bill of evidence showing that the claim was properly verified and proved, this court must presume the court below adjudged correctly.

Henry Warth was only the surety of Peter Smith that he would raise the money and pay the residue of the debt to Boulden, he was not a principal debtor, and therefore appellants were not entitled to a personal judgment against him.

The judgment therefore on the original appeal is affirmed.

On the cross-appeal Henry Warth and David Warth were active in getting Peter Smith to advance his money to pay the debt on the faith of the mortgage to be executed by their father, Henry assuring him that it should be done, and undertaking to answer for his father’s compliance; David was one of the original debtors and participated in the arrangement. By the part they took in the matter they are estopped to deny that their father had title to the land, and to defeat the mortgage.

Trimble, Huston, for appellant.

Wherefore the judgment is affirmed on the cross-appeal.