51 Ky. 202 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
Nathaniel Wickliffe, and B. Abell, two of the creditors of Dabney C.- Cosby, dec’d., instituted separate suits in chancery against his heirs, to subject to the payment of their demands, some estate which they eon-
It appears that Cosby in his lifetime had mortgaged his interest in his father’s estate, being an undivided in - terest in remainder after the death of his mother, to a man by the name of Harlan, who had afterwards by a suit in chancery obtained a decree for the sale of the interest, for the payment of the mortgage-debt, and that the commissioner who was appointed to make the sale, reported that he had sold the entire interest to Susan-nah Cosby, the mother of Dabney C. Cosby, whose report was confirmed, and a conveyance executed by a commissioner, iq conformity with the report conveying the entire interest to the purchaser, who afterwards conveyed'the same .to the children of her son, Dabney C. Cosby, he having departed this life. These facts-having been developed during the pendency of the suits, and the object of Wickliffe’s suit having been to subject this interest to the payment of his demand; he filed an amended bill in which he alleged that the commissioner under the aforesaid decree, had in reality sold only two-thirds of the interest, and that he had either by mistake, or by fraud and collusion with the purchaser,'reported to the Court that he had made a sale of the whole interest, instead of a sale of two-thirds, and in consequence thereof, the entire interest had been conveyed to the purchaser, and had passed to the chil
The mistake in the report is fully and clearly established by the testimony. The certificate subscribed by the commissioner on the day of the sale, and given to the purchaser, states that she liad purchased two-thirds of the interest only. Another bidder proves that he had made a bid proposing to pay the amount for which the decree authorized the commissioner to sell, for less than the whole interest, and that he was under bid by the purchaser. The purchase was not made by Susan-nah Cosby in person, but by her agent, who also testifies that he purchased for her, only two-thirds of the interest. The recollection of some of the witnesses is, including the commissioner who made the sale, but whose recollection about the matter seems to be very indistinct, that the entire interest was sold. And as their recollection is supported by the commissioners report, tlie matter would be involved in some doubt and uncertainty, were it not for the certificate of sale executed by the commissioner on ihe- day on which the sale was made. That certificate was found among the papers of the purchaser after her death by her executor, and when considered in connection with the other testimony upon the subject, leaves no room for any rational doubt, that the commissioner who did not make his report of the sale until four months had elapsed, then reported by mistake or inadvertance contrary to the actual fact that he had sold the entire interest.
The mistake was the act of the commissioner, and not of the Court, and although the title passed to the purchaser by the conveyance made by order of the Court,, and was subsequently conveyed to the children of D. C. Cosby, yet as the conveyance to them was without any valuable consideration, they hold one third
B. Abell alleged in his bill, that assets had descended from Dabney C. Cosby to his children and heirs at law. That since the death of their ancestor, they had as his heirs at law, brought an action of ejectment against a certain William McDonald, for a tract of land which had thus descended to them, and had compromised the suit, and conveyed or agreed to convey their title to McDonald, who had paid them for the land a considerable sum of money, which money was liable in their hands as assets for the payment of their father’s debts. The heirs answered and admitted that such an action had been brought by them and compi’omised, an agreement having been made between them and McDonald, by which the latter agreed to pay each of them, there being three, the sum of one hundred and fifty dollars, and they were to convey to him whatever title they had to the land. They further stated, that the land had been sold as the property of their father by the sheriff by virtue of an execution in his hands, and that McDonald bought it from the purchaser, and held the possession under that purchase; that having understood there was some defect or irregularity in the sale, the action of ejectment was brought by them to recover the land, but having become doubtful of success the suit was compromised. They contended that McDonald’s title to the land was valid, that no title to it. ' had descended to them from theiy father, and that the
As the action of ejectment was brought and the recovery sought by them as heirs of their father, who had owned .the land in his lifetime, and no other right to it was claimed by them, the proceeds of the suit resulting from the compromise must be considered at least prima facie, as the avails of a right which had descended to them from their ancestor. The suit was founded on that right alone, and in the absence of all testimony as to the exact character of their claim, it must be regarded as having been1 of sufficient importance to authorize the institution of the suit, and to produce the compromise. Whether, if it had appeared clearly and conclusively, that the title of McDonald was good and valid, and no right or title had descended to the heirs from their father, the money obtained by them by way of compromise, should be treated as assets in their hands, it is unnecessary to decide. For as the case stands, that question is not presented; and when a.
The consolidation of the two suits was proper, and the order made for that purpose did not prejudice the appellants.
Wherefore the decree is affirmed.