| 25 Ky.L.Rptr. 1908 |
|---|
| Court of Appeals of Kentucky. |
| WATTS v. PARKS. |
| March 3, 1904. |
| ACTION: Affirmed. |
Appeal from Circuit Court, Knox County. "Not to be officially reported." Suit by W. C. Parks against J. T. Watts to foreclose a mortgage. From a judgment in favor of plaintiff, defendant appeals. HOBSON, J. J. M. Bailey filed this suit against J. T. Watts, setting up a debt secured by mortgage on a tract of land known as the "A. H. Draughn Place," the property of Watts, seeking the enforcement of the mortgage. W. C. Parks, who was made a defendant to the action and alleged to hold a lien on it, answered, setting up a note of $300 and a mortgage to secure it. He made his answer a cross-petition against Watts, but no process seems to have been then issued. This was at the June term, 1898. After this, Watts settled with Bailey, and at the November term, 1901, an order was made that the action should thereafter proceed in the name of W. C. Parks against J. T. Watts, and process was awarded on the cross- petition. At the next term of the court Watts filed an answer pleading "that, after the note sued upon was executed, he made several small payments on same, and on the 18th day of March, 1902, they made a full and complete settlement on the note sued upon, and the cost and interest on same, and that the defendant Watts was due the said Parks the sum of $261.19, for which amount he is willing for Parks to have judgment, as the mortgage lien was released and settled up, and the said amount is all that was due upon the note sued upon on date of settlement, and that said Parks agreed to have the case dismissed without prejudice. Judgment for $261.19, which defendant Watts agreed to pay." No reply was filed to this answer, and, the case being submitted, the court gave judgment in favor of Parks for $261.19, with interest from the date of the settlement, and ordered the sale of so much of the land as was necessary to pay the debt and costs. Watts complains that anything more than a personal judgment was rendered against him under the allegations of his answer. At the date of the settlement Watts was indebted to Parks, on the allegations of the answer, in the sum of $261.19. His promise to pay this debt, which was then due, was only a promise to pay what he owed. Such a promise was no consideration for an agreement by Parks to release his mortgage lien on the land, and, if the answer can be construed as averring that Parks agreed to release his mortgage, such agreement by him was without consideration; but, as the pleading must be taken rather against the pleader, we think it properly means no more than that there was a settlement on March 18, 1902, which fixed the amount of the debt at $261.19. The judgment was not entered until the March term, 1903. Watts had failed to pay the debt, and it is not disputed that a personal judgment was properly entered against him. The plea is insufficient to show that the mortgage lien was released. It is also urged that Parks' mortgage does not sufficiently describe the property. The description in the mortgage is as follows: "A certain tract or parcel of land known as the A. H. Draughn farm on left hand fork of Troublesome Creek." The rule is that that is certain which may be made certain, and that parol evidence may be received to show what body of land was known and designated by the name given in the mortgage. The A. H. Draughn farm, as shown by the record, is the farm conveyed by Draughn to Watts. It is fully identified in the record. The mortgage also contains these words: "This mortgage is just to include a sufficient amount of said farm to secure said debt." It is urged that these words render the mortgage bad; but this would be the legal effect of the instrument if the words were omitted. They add nothing to it and take nothing from it. Judgment affirmed. Ky.App. 1904. WATTS v. PARKS. 78 S.W. 1125, 25 Ky.L.Rptr. 1908 |
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