McGrath v. Kirkland

Opinion by Judge Pryor : The facts of this case bring it directly within the rule established by this court in the case of Pack v. Carder, 4 Bush 121, and in Green v. Cummins, 14 Bush 174. In the latter case the identical question is settled. When Kirkland assigned these notes to McGrath it was in payment of the land purchased, and although a lien might have been retained in express words it was obligatory on the assignee to prosecute the obligor to insolvency before he could enforce his lien. He will not be allowed to hold the notes because he has a lien. He agreed, in effect, when he took them by the assignment, that he would use diligence to collect, and that he failed to use any in this case is made manifest by the record. The party who purchases the property and gives the lien to secure his own notes would of course hold the property subject to this lien, although his notes had been assigned and no suit at law instituted on them; but the case is different where he assigns the notes of third parties in payment. In such cases before you can reach the property you must make the effort to collect the notes of the obligor. Judgment affirmed.