11 Ky. Op. 873 | Ky. Ct. App. | 1883
Opinion by
This is the second appeal in this case. On a former appeal this case was reversed because the commissioner’s report of sale had been confirmed after the death of the alleged purchaser and without any revivor of either the original or cross-action against his real representatives. On the return of the cause it appears that Gardner’s heirs declined to revive the original 'action in their names, and his administrator resisted the efforts of Hoffman, the bank, and Roberts to do so. It seems that the heirs and administrator together not only blocked all efforts at revivor of their action, but brought the court to the point of disclaiming power to proceed with the case. The orders appealed from present an anomaly in judicial proceedings.
The court overruled appellees’ motion, made in pursuance of the summary mode provided by the code, to revive the original action in the name of the heirs of J. H. Gardner, who was the plaintiff in that action. This was correct, as four years had expired from Gardner’s death before the motion, based on notice, was made to revive, and according to the provisions of the code the time had elapsed within which the action might have been summarily revived. Civ. Code (1876), §§ 508, 509.
The administrator then moved to set aside the commissioner’s report of sale and the appellees moved to confirm it, but the court decided it could do neither, without the heirs were before the court. The administrator, after the order was made, successively moved the court to dismiss the cross-action of the appellees and for a re-sale of the land, which were overruled, and the administrator has appealed and the appellees have prayed a cross-appeal.
The appellees amended their cross-petition, in which they sought to recover the amount of their mortgage debt, and made the heirs of appellant’s intestate parties. The amendment by appellees was in the nature of a bill of revivor and to bring the necessary parties before the court, which was their right and duty to do, according to Civ. Code (1876), §23. Although the time had passed for a revivor, according to the summary mode prescribed by Code (1876) Title II, yet, as has been held by this court in Greer v. Powell, 1 Bush (Ky.) 489, that mode of revivor does not impair the right to bring any necessary party before the court by other appropriate means, and the court therefore properly refused to dismiss the cross-action, it not being possible or necessary to proceed to revive the cross-action against the heirs by the provisions of said title.
The court refused to set aside or confirm the sale, and as no final order has been made respecting the sale no appeal lies to the new action of the court about that matter. As the parties are anxious to avoid future litigation on the much vexed question of parties to this action, growing out of a struggle for position in the anticipatory contest over the confirmation of the sale on the merits, we suggest that as there has been a sale which is not denied, and which vests the equitable right to the house and grounds on which it stands in the heirs of J. H. Gardner, if he was the purchaser, it is the duty of the court to respect their rights and not
But should the appellees show the sale and purchase by J. H. Gardner in such a light as a court of equity ought to confirm it, the court should credit the amount of his bid on the debt due his estate and, if it is thereby extinguished, adjudge the appellees the amount of the mortgage and direct a sale of the remainder of the land to pay it, and leave the heirs to their pleasure as to whether they will have the sale to their ancestor confirmed.
We see no error in any of the final orders appealed from, and as we have no power to order the court to proceed with the case we will so far as it has gone affirm its action on the original and cross-appeal.