
    A. J. Herd et al. v. James Eversole et al.
    [Abstract Kentucky Law Reporter, Vol. 3-757.]
    Recovery Under Indemnity Mortgage.
    The holder of an indemnity mortgage is entitled to recover out of the mortgaged property a sum of money equal to the amount of money he has become liable for by reason of the mortgagor’s failure to satisfy the claim upon which the mortgagee has become liable.
    APPEAL FROM OWSLEY CIRCUIT COURT.
    April 4, 1882.
   Opinion by

Judge Pryor:

The proper construction of the agreement between the appellant, Sebastian, and the appellees is that he would have secured to the latter the sum of $300, and if this has been done the appellant has fulfilled his undertaking. The mortgage executed by Plerd and wife, from the proof before us, indemnified the appellees to that extent, and there is no reason why they did not proceed to have the mortgaged property sold for that purpose. It was sold, or adjudged to be sold, by the judgment in this case, but the appellant, Herd, complains and says that no pleading was filed asking a foreclosure of that mortgage; but on the contrary the appellees were disclaiming the lien created for their benefit and insisting that Sebastian was directly liable to them for the $300. The appellees are entitled to a judgment for whatever moneys they have been made liable for, by reason of Herd’s failure to satisfy the claim of Brandenburgh, and to the extent of $300 secured by mortgage.

/. & J. W. Rodman, for appellants.

I. L. Scott, for appellees.

This judgment is reversed as to Sebastian, as the record shows he has complied with his agreement, and reversed as to Herd, because there was no pleading by them asking a sale of the mortgaged property. On the return of the cause the appellees may be allowed to show that they have not been secured by the mortgage, if such is the case, as there seems to have been no preparation on that branch of it. If the land belonged to Herd and wife and is worth the money they must look to the mortgage and not to Sebastian. Judgment reversed and cause remanded.  