176 S.W.2d 98 | Ky. Ct. App. | 1943
Reversing.
The action was instituted October 16, 1942, by appellee, J.V. Harris, against his father, C.A. Harris, to recover the sum of Five Hundred Forty-Nine Dollars ($549), representing the amount appellee testified was paid by him on a mortgage loan on real estate which, under a contract of purchase, was conveyed to him by his father. Payments were made while appellee was in possession of the property under the deed aforesaid. The consideration for the deed was the assumption by appellee of the payment of the mortgage loan. In an action filed in the Knox Circuit Court June 3, 1941, between appellant, plaintiff, and appellee and his wife, defendants, the deed was canceled because "* * * the consideration for the execution of said deed from the said C.A. Harris to said J.V. Harris has wholly failed * * *." The judgment from which the above quotation has been copied was rendered by default March 5, 1942, although both defendants were duly summoned. Appellant pleaded the former action as a bar to appellee's right to recover herein under the doctrine of res adjudicata. It is argued that the plea is not available, because the former suit primarily was one to cancel the deed, and the question of the amount expended by appellee in pursuance of the contract was not adjudicated.
We cannot agree with this contention. The doctrine of res adjudicata has been succinctly stated by this Court in Stone v. Winn,
The judgment is reversed, for proceedings consistent with this opinion. *44