132 Ky. 294 | Ky. Ct. App. | 1909
Opinion of the, Court by
These appeals are from the same judgment. Both, were granted by the court below, and by an agreement of the parties have been submitted and heard, together in this court. As a matter of convenience-T. L. Elswick will in the opinion be called appellant, and Nelson Matney appellee; The action out of which, these appeals arose was instituted by appellee against appellant in the court below to- obtain the cancellation of a deed made the latter by the master commissioner of the Pike circuit court, under an order of that court entered in the case of M. E. McOorobs-, etc., v. Alex Mhtne-y, etc., and which- purported- to convey appellant an undivided half of a 200-acre tract of land, situated on- the Louisa fork of Big Sandy river in Pike county; it being alleged in the petition that appellee is the owner and in possession of the land;, that appellant is casting a cloud upon his title-' by wrongfully and illegally claiming' to be the owner and entitled to the possession of an undivided half' thereof by virtue of the commissioner’s deed referred to, and that the deed in question, the- order directing its execution, and the judgment of the court under-which an undivided half of the land- was sold and purchased by appellant were and are each and' all void. After further averments as to- the derivation and superiority of appellee ’s title to the land, and attacking that attempted to be asserted by appellant-, the petition concludes with a prayer that appellant’s
There is practically nO' disagreement between the parties as to the facts upon which' the controversy rests. It is admitted that the land in controversy was formerly owned by Wm. Bishop, Sr., and that he by deed of March 22, 1889, sold and conveyed it to Alex Matney and John Matney at the price of $800, of which amount $300 was then paid by the grantees, and for the remainder they executed two notes; one for $300, payable May 1, 1890; and the other for $200 payable May 1, 1891. All this was fully stated1 in the deed, which expressly retained a lien upon the land to secure the payment of the notes; The deed was at once duly recorded in the office of the clerk of the Pike county court. In addition Jane Matney placed her name to the note of $200, presumably as surety, though that fact does not affirmatively appear of record; nor does it appear whether she was the wife of Alex Matney or John Matney, or what relation, if any, she bore to them or either of them. On September 15, 1892, Alex Matney executed to M. E’. McCbmb and I. M. Webb a mortgage upon his undivided half of the land, which had been conveyed him and John Matney by Wm. Bishop., Sr., to secure the payment of a note of $400, and the mortgage was shortly thereafter duly recorded. In the meantime the $300 note executed by Alex and John Matney to Wm. Bishop, Sr., for the first deferred payment on the land, and which became due May, 1890, seems to have been paid at maturity; but the note of $200, executed by them and Jane Matney to Bishop, was not paid when it became due, M3ay 1, 1891, and shortly thereafter Wm. Bishop, Sr., brought in the Pike circuit court an action at law upon it
In due course an execution issued on the personal judgment obtained by Wm. Bishop, Sr., against Alex Matney, John Matney, and Jane. Matney, which, while in full force, was levied by the sheriff upon the 200 acres of land Bishop sold and conveyed Alex Matney and1 John Mlatney. After due advertisement there was a sale of the land by the sheriff under the execution levy, and at that sale Wm. Bishop, Sr., being the highest and best bidder, became the purchaser of the whole thereof at the amount due upon the execution, which included the principal of the $200 note, interest, thereon from its date, and the costs of the suit and sale. After the sale of the land under Bishop’s execution, McCombs and Webb brought an action in equity to recover of Alex Matney the amount of their note against him, and to enforce their mortgage lien upon Alex Matney’s undivided half of the 200-acre tract of land, in satisfaction thereof. Judgment was rendered in the last-named action as prayed, and at the sale by the master commissioner of Alex Matney’s interest in the land, made as directed by the judgment in favor of McCombs and Webb, the appellant, Elswick, became the purchaser at the amount of the judgment debt. He did not, however, obtain a deed to Alex Matney’s undivided half of the land thus sold, for more than a year after the sale; but, whether the delay was because the judgment debtor had an equity of redemption in the land, or
After appellee’s purchase of the land from Win. Bishop, Sr., and the obtentio-n of his deed from the sheriff, Bishop died- intestate, and soon thereafter Wm. Bishop, Jr., as administrator of his estate, sued in the Pike circuit court to recover of appellee the amount he had' agreed to pay the intestate for the land, and to enforce a vendor’s lien thereon for its payment. In that action appellee filed an answer denying any indebtelness to the. decedent’s estate for the land, and alleging payment in full of the consideration. During the pendency of the action the appellant was upon his petition made a party, and the petition taken as an answer and counter-claim. Appellant therein denied that the administrator of the
In the present action, brought by appellee to quiet his title to' the land in controversy, appellant filed an answer and counterclaim containing a traverse of the averments of the petition, and alleging title in himself to that undivided half of the land formerly owned by Alex Matney; Ms title having been acquired, as claimed, by virtue of the judgment enforcing the mortgage lien of McCombs and Webb, rendered in the suit brought by them'" against Alex Matney, and Ms (appellant’s) purchase of Alex Matney’s half of the land at .the decretal saje, for which he later re>ceived a deed by order of the court from tbe master commissioner. Appellant’s answer contains the fur
It will be unnecessary to consider on these appeals the judgment of the circuit court in the action of Wm. Bishop’s administrator against Nelson Matney, except to say that the court, instead of the action taken, •should have set aside the sale made of the land in
By his answer, counterclaim, and cross-petition in the instant case appellant relies upon the same claim of title pleaded by him in the ease of Bishop’s- administrator against Nelson Matney. The only additional facts here pleaded are that ¥m. Bishop, Sr., by taking personal security upon the $200 note of Al-ex and John Matney, procuring a personal judgment against the obligors and proceeding1 by execution, waived and lost his lien retained on the land by the deed to the Matney’s and that appellant had not obtained the commissioner’s deed when he became a party to the former action. These additions to the former plea cannot alter the effect of the former judgment. The pleading filed by appellant in the first case attacked the validity of Bishop’s lien and denied its existence. The one filed in the present case does' the same thing, but with greater particularity; this is the only difference. If it were necessary to pass upon that question we might very properly say that this court has held that the taking of personal security is not a waiver of a vendor’s lien, unless there be an actual intention to waive the lien. Bradly v. Curtis, 79 Ky. 327, 2 Ky. Law Rep. 329; Colcord v. Seamond, 6 B. Mon. 265; McClure v. Harris, 12 B. Mon. 265; Beyland v. Sewell, 4 Bush, 637. Nor does the recovery of a personal judgment and an attempt to make the debt by execution ordinarily waive a lien that, may exist as security for the debt. Roberts v. Bruce, 91 Ky. 379, 15 S. W. 872; Moriarity v. Vessey,
No doctrine is better settled than that a judgment of a court of competent jurisdiction upon- the merits-of a case is*conclusive between the parties in a subsequent action upon the same cause, not only as to all matters actually litigated, but as to'every ground of recovery or defense which might have been presented or determined therein, either at law or in equity. As said in Sumrall v. Maninni, 124 Ky. 67, 98 S. W. 301, 30 Ky. Law Rep. 299, (quoting with approval from Freeman on Judgments, section 249): “There is no doubt that a judgment or decree, neee-ssarily affirming the -existence of any fact is conclusive upon the parties or their privies whenever the existence of the fact is again in issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter in the same or any other court. * * * An adjudication is final and conclusive, not only as to a matter actually determined, but as to- every other matter which the parties might have litigated' and have decided as incident to, or essentially connected with, the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both as to the .matters of claim and defense.” Holtheide v. Smith’s Guardian, 84 S. W. 321, 27 Ky. Law Rep. 60; McDaniel v. Stum’s Adm’r, 65 S. W. 800, 23 Ky. Law Rep. 1935; Moriarity v. Vessey, 6 Bush, 115.
We think the circuit court properly dismissed the