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Monday v. Wethington

December 5, 1952

MONDAY
v.
WETHINGTON



Combs

COMBS, Justice. George Monday bought from Eddie Wethington a tractor on which Eddie's grandfather, Noah Wethington, the appellee, held an unrecorded chattel mortgage. The judgment recognizes the validity of the mortgage in the amount of $285 and directs enforcement by sale of the tractor. Monday has filed motion for appeal.

As grounds for reversal it is argued: (1) No reply was filed to the affirmative allegations of the answer; (2) the chattel mortgage was not properly executed or acknowledged as required by statute; (3) material alterations have been made in the mortgage; (4) Monday is a bona fide purchaser.

This being an equity case, and the affirmative allegations of the answer having been treated as denied, the failure to file a reply was waived. Short v. Robinson, 280 Ky. 707, 134 S.W.2d 594; Eastern Construction Co. v. Carson Construction Company's Trustee, 242 Ky. 648, 47 S.W.2d 67.

Formal requirements of acknowledgment and execution are not necessary as between the parties to the instrument and those with knowledge of it.

The other complaints are addressed to findings of fact by the trial judge. We think the evidence supports the judgment.

The activities of Eddie Wethington seem to have precipitated this litigation, and there is strong suggestion in the record that he gave perjured testimony in one of the two trials had below. The Commonwealth's Attorney might properly look into the matter.

The judgment is affirmed.

19521205

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