Underwood v. Ogden
Court of Appeals of Kentucky
Error to the Warren Circuit. Chancery. Case 140. The case stated. A creditor in legal contemplation is one who has a judgment, and sued out execution before notice of an unrecorded mortgage, and unless placed in that attitude before notice, cannot successfully attack an unrecorded mortgage.
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Error to the Warren Circuit. Chancery. Case 140. The case stated. A creditor in legal contemplation is one who has a judgment, and sued out execution before notice of an unrecorded mortgage, and unless placed in that attitude before notice, cannot successfully attack an unrecorded mortgage. A junior mortgagee rvith full notice of a prior mortgage, admitted to record tho’ upon insufficient authentication, cannot overreach the prior mortgage, when he is not a judgment creditor, with an execution levied. A mortgage exhibited in the-pleadings, on bill to foreclose, read without objection, not…
1Opinion of the CourtChief Justice Ewing
delivered the opinion of the Court. '
This is a bill in chancery filed by Ogden, to foreclose a mortgage made to him by Henry, in New Orleans, to secure certain debts due him, and recorded in the proper counties in Kentucky, but upon the authentication only of the Notary Public. He .makes Underwood a party, who asserts claim to the same property, under a subsequent mortgage, made by Henry to him, to secure him in certain liabilities as Henry’s surety.
A creditor, in legal contemplation, is one who has recovered judgment. And to entitle a creditor, as such, to take advantage of an unrecorded…
2Cases cited1 opinion
- Aleck v. TevisCourt of Appeals of Kentucky · 1836
3Cited by1 opinion
- Evans v. KisterCourt of Appeals for the Sixth Circuit · 1899