Vinson, Goble & Prichard v. McAlpin & Co. ( 1888 )

To a petition for rehearing,

Judge Pryor

delivered the following response of the court:

When the opinion in this case was delivered the case of Fuqua v. Ferrell, reported in 80 Ky., 69, was not considered, and we now fail to see any analogy between these two cases. There a mortgage was executed to secure the debt by an insolvent debtor, and operating as an assignment, the estate then passed to creditors, and any subsequent transfer by the debtor could not divest the creditors of title unless made to a bona fide purchaser. In Southworth v. Casey, reported in 78 Ky., 395, it was so expressly held, and the bona fide purchaser who obtained the property between the time of the act operating as a transfer of the debtor’s property and the institution of the suit by creditors, was protected in his title. In Fuqua v. Ferrell this court was discussing the effect .of the payment by the debtor of a part of the mortgage debt after the execution of the mortgage. The payment' was also an act of insolvency, and in alluding to such payments, or the acquisition of property after an act of insolvency, the rights of an innocent purchaser, as was said in that case, would be protected, unless the purchase was made after the institution of the suit by creditors. There is no conflict in the cases. Both follow the statute. In the case before us the parties who are the appellants here were bona fide purchasers from the time the contracts were made until the timber was delivered, and when executed by the delivery, there is no reason in law or equity, or any provision of the statute, that would compel the appellants to surrender their acquisitions for the benefit of the common creditors,'

Petition overruled.