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Stern vs. Freeman.

taining possession of it during ten years, without disaffirming the contract, inay then avoid it by pleading infancy, unless he shall have ratified it in writing?

We do not consider it necessary, however, to answer either of those questions, because, if the statute applies to such acts of ratification as were performed by the defendant, yet the evidence, in our opinion, shows that the plaintiff is entitled to

recover.

The defendant's letter to Leibor was not produced. But Leibor's testimony, concerning it and its contents, having been admitted without objection, is entitled to the same weight as the letter itself, had it been produced.

The letter did not speak, in so many words, of the defendant's purchase of the plaintiff's interest in the partnership effects. But that the defendant had made such a purchase is clearly inferable from the statements that he had the collecting of the debts "due to the late firm," and that he was "going on in the same business in his own name."

The defendant's answer states that the note sued upon was given, with others, to obtain the plaintiff's withdrawal from his partnership with the defendant. The answer and the letter to Leibor, connected, leave no room for doubt, that the purchase referred to, though not expressly mentioned in the letter, was the same for which the note sued on was given.

The statements of said letter also authorize the inference that the defendant, after coming of age, retained possession of the property thus purchased from the plaintiff, and dealt with it as his own, in his own name and for his own benefit, conducting the business, selling the goods and collecting the debts, which, but for his contract with the plaintiff, would have belonged to them as partners.

Those acts were a ratification of the purchase, and the defendant must pay the notes given for the purchase money. (Hubbard vs. Cummings, 1 Greenf., 11; Lawson vs. Lovejoy, 8 Greenf., 405; 2 Kent's Com., 253.)

The statute does not require the plaintiff to produce a written ratification. It only requires that the "ratification, or some memorandum or note thereof," shall be in writing. A writing,

Brown vs. Story's Adm'r., &c.

showing that the defendant has performed an act of ratification, is as effective as one containing an express ratification.

As the letter to Leibor sufficiently identifies the contract relied upon by the plaintiff, as having been ratified, the fact that it was addressed to Liebor, and not to the plaintiff, is immaterial. It is relied upon, not as constituting a ratification or containing a promise, but as evidence of a ratification previously made, and as such it is entitled to the same weight as if it had been addressed to the plaintiff. (1 Smith's Lead. Cases, side page 137, and cases cited.) The judgment is affirmed.

CASE 29-PETITION EQUITY-SEPTEMBER 28.

Brown vs. Story's Adm❜r., &c.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

1. Debts, owing to mechanics for the construction or repairing of houses in the city of Louisville, are favored by the law, and a preference is given to them over other debts of the owners of the property, to the extent of the value of the property improved which has not been previously incumbered.

2. The lien of a mechanic upon a house constructed by him in the city of Louisville, for the amount due him therefor, is an incumbrance upon it within the meaning of chap. 36, art. 15, of the Rev. Statutes.

3. Where such lien exists, and an execution is levied upon the property, the purchaser, at the sale made under it, and his vendee, only acquire a lien thereon for the purchase money and interest after the rate of ten per centum per annum from the day of sale till paid. That the property was not levied upon and sold as incumbered property, and that, after the sale, the purchaser removes the incumbrance which was upon it, will not give him an absolute title.

4. Other creditors may, before the purchaser has by suit removed the incumbrance, bring suit to subject the incumbered property. (Rev. Stat., sec. 2, art. 15, chap. 36.) But, where the purchaser under the execution has otherwise removed the prior in. cumbrance, and sold the property before the suit was brought, the sale may be permitted to stand, and a personal judgment be rendered against him.

Brown vs. Story's Adm'r., &c.

RILEY & RUSSELL, for appellant.

JAS. HARRISON, for appellees, cited 3 Met., 195; Rev. Statutes, chap. 36, art. 15, sub-section 2 of section 1.

JUDGE PETERS DELIVERED THE OPINION OF THE COURT:

In 1856 Howard leased an unimproved lot in the city of Louisville, for ten years, from Dr. Johnson and others, and bound himself to erect a brick building on it, and Johnson, &c., were to pay him the value of the building at the end of the term. Norwood, a mechanic, under a contract with Howard, constructed a building on said lot, and, on the 3rd of May, 1858, had a lien on said house for the construction thereof. Johnson, &c. also claimed to have a lien on the property, for a considerable amount due them for rent. On the last named day Duvall & Co. and J. Watson, being judgment creditors of Howard, caused executions to issue on their judgments and had them levied on the leasehold estate, which was sold, and Buford became the purchaser, who afterwards sold his interest, acquired by his said purchase, to appellant. Appellees, creditors of Howard, brought this suit against Brown and others to subject the property to the payment of their debts.

The only material question raised by this record is, had Howard created a bona fide incumbrance on the property, before the executions, under which Buford purchased, had been levied upon it, so as to bring his purchase within the operation of chap. 36, art. 15, page 488, 1 vol. Rev. Statutes? By an act, approved 22d Oct., 1831, it is declared that carpenters, joiners, brick and stone-masons, plasterers, tinners, painters, brickmakers, lumber merchants, and all other persons performing labor, or furnishing materials, for the construction or repair of any building within the city of Louisville, shall and may have a joint lien upon the buildings they may be employed to construct or repair, or for which they may furnish materials, to the extent of labor done or materials furnished, &c. (3 vol. old Dig. Stat. Law, 409.)

Debts, owing to mechanics for the construction or repairing of houses in the city of Louisville, are favored by the law, and

Brown vs. Story's Adm'r., &c.

a preference is given to them over other debts of the owners of the property, to the extent of the value of the property improved which has not been previously incumbered.

By causing the house to be erected, Howard created a lien, or a bona fide incumbrance, upon it, in favor of the mechanic who constructed said house, for the amount due him therefor, available and enforceable by the statute supra, and is an incumbrance within the meaning of chap. 36, art. 15, of the Revised Statutes. And, as this incumbrance on the property was created before a lien was created by the executions of Duvall & Co. and J. Watson on the same property, the purchaser at the sale under said executions, and his vendee, only acquired a lien on the property for the purchase money and interest, after the rate of ten per centum per annum from the day of sale till paid.

Appellees instituted this suit under sec. 2, chap. 36, art. 15, of Rev. Statutes, supra, before the purchaser had by suit removed the incumbrance.

It is true the property was not levied upon and sold as incumbered property, and, since the sale, Brown has removed the incumbrance which was upon it; but he did not thereby acquire an absolute title to it; his rights are not determined by the character of the levy or the manner of making the sale, but by the character of estate the defendant in the execution had in the property sold. If he had, by mortgage, deed of trust, or otherwise, created a bona fide incumbrance upon it before the execution under which it was sold had created a lien on it, all that Buford or his assignee acquired by his purchase was a lien on the property for his purchase money, with interest at the rate of ten per centum per annum from the day of sale till paid; and this is the only right which can be acquired under such a purchase. (Forrest vs. Phillips, &c., 2 Met. Ky. R., 194.).

Appellant, having sold the property to Wellman before appellees brought their suit, the chancellor permitted the sale to stand, and rendered a personal decree against him, which was

Story, &c. vs. Graham.

not prejudicial to appellant; and, as his decree in all other respects conforms to the views herein expressed, the same is affirmed.

CASE 30-PETITION EQUITY-SEPTEMBER 29.

Story, &c. vs. Graham.

APPEAL FROM THE FLEMING CIRCUIT COURT.

1. In July, 1861, a debtor conveyed 70 acres of land to a creditor, in payment of $1,000 due him. In November afterwards, he conveyed the residue of his land to sureties, in consideration of their agreeing to pay debts, amounting to $5,020, for which they were bound for him. At the time of the first conveyance he owned no property subject to his debts except the lands, and his debts amounted to over $12,000. The lands were worth about $6,000. Held, That the conveyances were made in contemplation of insolvency, and for the purpose of preferring some of his ereditors over others.

2. Quere. Must a creditor, who attacks conveyance by his debtor upon the ground that it was made in contemplation of insolvency and with the design to prefer certain creditors, allege in his petition that the conveyance was made within six months before the commencement of the action?" (See Met., 146; Ib., 457.)

ANDREWS & Cox, for Story, &c., cited 1 Met., 450.

WM. S. BOTTS, for Graham, cited 1 Met., 457.

W. H. CORD, on same side, cited 2 Met., 52; 3 Met, 399; lb., 539; 5 Dana, 220; 1 Met. 450; 3 Story's Rep., 453; 2 lb., 340, 360; 2 Lawrence, (Ohio) 400; 18 B. Mon., 312; 1 Met., 632; 3 Met., 450; 14 B. Mon., 403; Parson's Mercantile Law, 304, note 4 9 B. Mon., 189; 3 Met., 48, 51; Civil Code, sec. 153; 4 Dana 331; 8 Ib., 81; 14 B. Mon., 533; 8 Ib., 11; 2 Barn. & Adol., 93; 14 B. Mon., 290; 9 Dana, 77; 3 Mon., 86; 3 Met., 95.

JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:

Graham brought this action on the 1st of January, 1862, for the purpose of subjecting property formerly belonging to

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