Baker v. Kunkel

Miller, J., delivered the opinion of the Court The appellants, who are the permanent trustees in insolvency of George W. Titlow, filed the bill in this case to vacate and annul a mortgage from the insolvent to the appellee, Philip B. Kunkel, executed and ³⁹³ recorded on the 5th of August, 1881. .The mortgage on its face shows that it was made to secure a preexisting debt of §1500, and also as indemnity for obligations previously incurred by the mortgagee by way of accepting drafts drawn on him by Titlow, to the extent of §1000. The bill refers to the proceedings in insolvency under which Titlow was adjudged an insolvent, and, for the purposes of this case, nothing jnore is necessary than an examination of this proceeding, which is set out in the record. The proceeding was instituted by a creditor, and his petition, which was filed on the 26th of October, 1881, charged in substance, that Titlow was a merchant and trader, and while insolvent and in contemjdation of insolvency, made unlawful preferences, first, by executing, on the 2lth of July, 1881, a mortgage to the Fredericktown Savings Institution to secure a debt of §5000, part of which petitioner believes was incurred prior to the mortgage, and second, by executing the mortgage in question to Kunbel. In his answer to this petition Titlow admitted all its material averments, except that he denied that any part of the consideration for the mortgage to the Savings Institution was a preexisting debt, and averred that, on the day the 22202’t-gage is dated, he obtained a loan of §5000 and gave his note for it secured by the mortgage.

The case was submitted on this petition and answer, and the Court thereupon,