153 Ky. 768 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing.
Overton Adams and Charles Singleton each owned an undivided one-third interest in a small tract of land lying in Lincoln County, Kentucky. Annie S. Gover, claiming to be the owner of the other one-third interest, instituted an action against Adams and Singleton to sell the land on account of its indivisibility. On final hearing, the court adjudged that Adams, Singleton and Annie S. G-over were each the owners of an undivided one-third interest in the land, and directed a sale of the land. The sale took place, and J. T. Wells became the purchaser at the price of $300, and executed bond therefor with J. N. Singleton as surety. Thereafter exceptions were filed by Annie S. Gover and overruled by the court. An order
Adams died during the year 1905, intestate, unmarried and without issue. He left surviving him several collateral kindred. His administrator and heirs brought this action to recover the land in controversy. The basis of the action is that Overton Adams, while the sale was pending, was sick and unable to attend court or to look after his interests in the matter. Por that reason he procured J. T. Wells, who at the time was making his home with him, to go to Stanford, where the sale was to
A demurrer was sustained by the reply and the petition of plaintiffs dismissed. From that judgment this appeal is prosecuted.
It is insisted that the reply was insufficient because it simply denied certain allegations in the answer shown by the record in the ease of Gover v. Adams, and admits that no exceptions to the report of sale were filed by Adams. In this connection it is argued that Adams being a party to the suit, and having failed to file any exceptions to the report of sale, and the sale having been confirmed, the judgment of confirmation is conclusive upon Adams and plaintiffs, who claim through him. The basis of plaintiffs’ action is that the defendant, Wells, agreed to buy the land for Adams, and fraudulently took title thereto in his own name, and thereafter refused to convey the property to Adams. If such was the case, then defendant, Wells, notwithstanding the fact that he became the purchaser, and the sale to him was confirmed, might have complied with his agreement by conveying the property to Adams. That being true, it was not necessary for Adams to file exceptions to the sale in order to protect his rights in the matter. Until the defendant, Wells, refused to convey the title to him, he had the right to assume that Wells would comply with his agreement. Adams and those claiming through him are not, therefore, concluded by the judgment of confirmation, but had the right, as was done in this case, to file an independent action, setting forth the circumstances of the agreement by which the purchase by Wells was made, and his subsequent refusal to comply with the agreement. However, if all the allegations contained in the answer are true, they would undoubtedly constitute an estoppel. As a matter of fact, however, the reply denies many of these allegations. It denies that Adams knew anything about Wells having purchased the property in his own name. It denies
Judgment reversed and cause remanded for proceedings consistent with this opinion.