46 S.W.2d 1080 | Ky. Ct. App. | 1932
Affirming.
On October 11, 1912, A.E. Justice and Vicy Justice conveyed to W.H. Justice, Jr., a tract of land in Pike county, excepting and reserving a right of way for railroad purposes. In February, 1929, the grantors gave to the Levisa River Railway Company an option to purchase *554
the described right of way over the land conveyed and this option was accepted by the railroad. Thereupon A.E. Justice and Vicy Justice brought suit for specific performance of the contract. The railroad denied the title of the plaintiffs, and pleaded that they were unable to comply with their agreement. There was pending at the same time a condemnation proceeding by the railroad, and this proceeding was transferred to the circuit court to determine the matter of title. That proceeding was consolidated with the suit for specific performance, and the railroad deposited with the master commissioner $3,000 in payment of the amount adjudged against it for the right of way. W.H. Justice, Jr., and Maude Justice, to whom W.H. Justice had conveyed the land, were made parties, and filed an answer and cross-petition, and an amended answer and cross-petition pleading in substance that the reservation in the deed to W.H. Justice, Jr., was void, and that they were entitled to the $3,000. To the answer and cross-petition as amended a demurrer was sustained, and the cross-petitioners having declined to plead further judgment was rendered directing the master commissioner to pay the $3,000 to A.E. Justice and V.E. (Vicy) Justice, who were also adjudged their costs. On appeal it was held that the reservation was void for uncertainty, and that the court improperly adjudged A.E. Justice and V.E. Justice were entitled to the $3,000, and the judgment was reversed with directions to enter judgment consistent with that conclusion. Justice v. Justice,
As our ruling on the former appeal was to the effect that the demurrer to the amended answer and cross-petition of W.H. Justice, Jr., and Maude Justice should *555 have been overruled, it was proper for the court to permit A.E. Justice and V.E. Justice to file an answer to that pleading. In the circumstances the only question for consideration is whether the answer stated a defense to the cross-petition. Briefly stated, the facts relied on in the answer are these: The tract of land conveyed to W.H. Justice, Jr., contained approximately 100 acres. While the deed expressed a consideration of $400, only $200 was paid or to be paid, and the real consideration for the conveyance was the love and affection which A.E. Justice and V.E. Justice had for W.H. Justice, Jr., who was their son. The said tract of land at the time they gave it to W.H. Justice, Jr., was worth more than the $3,000 which the Levisa River Railway Company paid for the right of way. Since the deed to the land on which the right of way was located was a gift of A.E. Justice and V.E. Justice to W.H. Justice, Jr., their son, W.H. Justice, Jr., and Maude Justice, who claims through and under him, are estopped and precluded from recovering any part of said right of way, or the money arising therefrom. The judgment adjudging A.E. Justice and V.E. Justice to be the owners of the right of way, and entitled to the proceeds arising from the condemnation, was not superseded, and was in full force and effect at all times until it was reversed and the mandate filed. All things done under and pursuant to said judgment before it was reversed were valid and binding.
The point is made that the facts pleaded in the first part of the answer bring the case within the purview of sections 2351 and 2352, Kentucky Statutes, providing in substance that, where a vendor conveys with covenant of general warranty a greater interest in land than he possesses, and thereafter a claimant of the land, who has received any estate by gift, advancement, descent, devise, or distribution, from the vendor, attempts to recover the land from the vendee, he will be barred of recovery to the extent of the value of the estate so received. Foreman v. Lloyd,
As we understand the latter part of the answer, it is an attempt to plead that as the original judgment directed the master commissioner to pay the $3,000 to appellants, and that judgment was never superseded, appellants were entitled to keep the money although the judgment was reversed. It is the rule that a subsisting judgment, though afterwards reversed, is a sufficient justification for all acts done pursuant to the judgment. Torian v. Caldwell,
As the original judgment directing the master commissioner to pay the $3,000 to appellants (on this appeal) was reversed on the ground that appellants were not entitled to the money, and remanded with directions, and as the court pursuant to those directions, and after sustaining a demurrer to the answer of appellants to the cross-petition of appellees, correctly held that appellants were not entitled to the money, it was proper for the court to require appellants to return the money to the master commissioner, and in the event of their failure or refusal to do so within ten days, to authorize appellee to proceed either by rule or by execution.
But the point is made that no judgment requiring appellants to restore the money should have been entered as there was no showing that the money had ever been paid to them. In the absence of anything to the contrary, it will be presumed that the master commissioner obeyed the order of the court, but if, as a matter of fact, the money was not paid to appellants, that fact on being manifested to the court will relieve them from the liability to pay.
Other questions are discussed in the brief for appellants, but all of them are concluded by the opinion delivered on the former appeal.
Judgment affirmed.
