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STATE STREET BANK AND TRUST v. HECK'S, INC.

No. 96-SC-902-DG.

963 S.W.2d 626 (1998)

STATE STREET BANK AND TRUST COMPANY OF BOSTON, MASSACHUSETTS; and James A. Quale, as Successor Trustee, Appellants, v. HECK'S, INC., a West Virginia Corporation; Heck's Properties, Inc., a West Virginia Corporation; HPI, Inc., a West Virginia Corporation; Hallwood Industries, Incorporated, a Delaware Corporation; Retail Acquisition Corp., a Delaware Corporation; Delta Natural Gas Company; Kentucky Utilities Company; the First National Bank and Trust Company of Corbin, Kentucky; John Bill Keck and wife, Gloria Keck; D.D. Roberts and wife, Edith Roberts; City of Williamsburg, Kentucky; and Whitley County, Kentucky, Appellees.

Supreme Court of Kentucky.

As Corrected March 19, 1998.

Rehearing Denied June 18, 1998.

Attorney(s) appearing for the Case

Richard M. Hopgood, Kathryn Kendrick, Brown, Todd & Heyburn, Lexington, Darrell L. Saunders, Corbin, for Appellants State Street Bank and Trust Company of Boston, Massachusetts and James A. Quale.

Robert M. Watt, III, Stoll, Keenon & Park, for Appellee Delta Natural Gas Company.

Roger R. Cowden, Lexington, for Appellee Kentuckey Utilities Company.

Gary W. Brittain, Leick, Hammons, Brittain, Corbin, for Appellee First National Bank & Trust Company of Corbin, Kentucky.

Howard Oliver Mann, Trimble & Mann, Corbin, for Appellees John Bill Keck, Gloria Keck, D.D. Roberts and Edith Roberts.

Frank A. Atkins, Williamsburg, for Appellee City of Williamsburg, Kentucky.

K. David Kersey, Williamsburg, for Appellee Whitley County, Kentucky.

COOPER, Justice.

The primary issue raised in this litigation is whether a valid, recorded second mortgage, acquired with actual notice of the existence of a prior equitable mortgage, takes priority over the equitable mortgage. In affirming the Whitley Circuit Court, the Court of Appeals held that it does. We hold that it does not.

Heck's, Inc., and Heck's Properties, Inc., ("Heck's") were the lessees of a 1.25 acre tract of real estate and a 2.75 acre "common...

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