117 Ky. 257 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
S. H. Gill owned a farm of about 236 4-5 acres of land in Logan county at bis death. He died intestate. There survived his widow and three children, viz., Seth W. Gill, Mary B. Young, and Dovie Wilson, who were his only heirs at law. The land was partitioned among them by mutual conveyances as follows: The widow was allotted 76 acres as dower. To the son, Seth W. Gill, was allotted 40 1-2 acres; to Mary B. Young 57 1-2 acres, and to Dovie Wilson three tracts' — one of 44 acres, another of 11 acres, and the other, 7 4-5 acres.
The subjoined plat shows the situation, and will enable the other facts of the case to be more easily understood:
Dovie had married H. S. Wilson, who had been an at
The grantors some days later carried the deed to a deputy county court clerk living in the neighborhood, and,
A year or so after the last named deed was executed H. S. Wilson conveyed all the land mentioned to his father, S, A. Wilson, then and now a resident of the State of Tennessee. The recited consideration for the conveyance (which included all the personal property on the farm) was $5,500, evidenced by four notes executed by S. A. Wilson to H. S. Wilson for $1,375 each, payable in one, two, three and four years, respectively. These notes EL S. Wilson, assigned to certain of his creditors to secure antecedent debts, and borrowed also about $900 additional on them, and procured the release of about $1,500 of collateral from one of his creditors, the People’s Bank of Adairville. He then became a bankrupt, and has left the State. Seth W. Gill sent his notes to an attorney at Russellville to bring suit enforcing a lien in his favor on the land he had sold to H. S. Wilson. Mrs. Young sent her notes to an attorney at the same place for like purpose. The attorneys, not knowing what lands had been conveyed, and being referred by their clients to the
This suit was brought by appellants, Seth W. Gill and Mary B. Young, to obtain a new trial of the action last mentioned. In addition to the facts above stated, it is alleged that the judgment was rendered decreeing a sale of their lands, viz., the 44 acres, 11 acres, and 7 4-5 acres inherited from their sister, to satisfy debts of S. A. Wilson and H. S. Wilson, and by casualty and misfortune they were prevented from appearing and showing that fact in the original suits. The learned judge who tried this case has advised us by an opinion filed in the court below of his conclusions of law as well as the finding of the facts upon which he based his judgment refusing the new trial.
It is contended for appellees here that the transaction between H. S. Wilson and appellants shown by the deed, of
By our statute (sections 474-483, Ky. St., 1903) they were subject to every defense in the hands of an assignee that they would have been in the hands of the original payee, Therefore, when the bank took these notes, whether ■for value or not, it merely took H. S. Wilson’s title to them i — took his place as payee. It could have no greater or other rights growing out of them, except as against EE. S. Wilson, than he had. The bank, as holder of these notes, being in EE. S. Wilson’s place, could not have interposed them as a de
It is very earnestly argued that under section 518, Civil Code, subsection 7, the new trial was not authorized, for it was under that section that it was sought. It reads: “The court in which a judgment has been rendered shall have power, after the expiration of the term, to vacate or modify it. . . . (7) for unavoidable casualty or misfortune preventing the party from appearing or defending.” It is claimed that there was no misfQrtune that prevented appellants
The suits, being based upon writings filed therewith, were not required to be verified or signed by the plaintiffs. There was no issue of fact presented in the case, and consequently no reason for calling the clients for consultation before the trial. They took the usual and formal course. No negligence appears, for negligence implies. a failure to do something which duty or prudence requires should have been done. The combination of probabilities', of every reasonable appearance that would mislead an ordinarily careful and prudent person pursuing that business, was such as to produce the mistake in the trial of the lien suits enforcing a lien on land not sold by the plaintiffs, for debts for which it was in no wise liable. This was the result of a “casualty” — an unforeseen incident — a misfortune.
In Elliott v. Harris, 81 Ky., 470, 5 R., 499, Mrs Elliott, the holder of the purchase money lien notes against land,' in a suit to enforce them lost because of an apparent failure of title in the vendor. After the judgment she accidentally discovered the deed of record constituting the missing link. In her action for a new trial it was urged, as here, that she must take notice of the records. This court held that, as the deed, though recorded, was not indexed, it was not a lack of diligence not to find it. See, also, Hall v. Com. (17 R., 231), 30 S. W., 877.
The facts stated were held to constitute casualty or misfortune entitling the losing party to a new trial. The purchaser at the decretal sale had paid nothing; had bought at a price entitling the owner to redeem — a price at which the sale might have been set aside for inadequacy, If any other casualty or error in the proceedings, even slight. The
Judgment reversed, and cause remanded for proceedings consistent herewith.
Petition for re-hearing for appellee overruled.