86 Ky. 240 | Ky. Ct. App. | 1887
DELIVERED THE OPINION OF THE COURT.
By will admitted to record in. 1843, in. the State of Mississippi, and subsequently recorded in the Jefferson ■county court clerk’s office, William Cotton devised to Mary Bryant, for life, remainder in fee to her children, the lot of land in controversy situated iu the city of Louisville.
In 1847 Mary Bryant, her husband joining in the deed, conveyed her interest in the lot to Henning, who ■conveyed to I)elph, and in 1856 the latter conveyed the .same interest to Michael Fillion, there being in the deed to him the following recital: “The estate hereby conveyed being an estate for life of Mary Bryant and no more (see will book No. 3, page 357, Cotton to Bryant; deed book 68, Bryant and wife to Henning, and book ■69, Henning to Delph”).
February -, 1863, Pillion filed in the Louisville
February 27, 1863, the clerk of the court attempted to issue a summons against the defendants, directed to the marshal of the Louisville Chancery Court, and on the same day issued or attempted to issue an order of attachment upon the property of the defendants, directed to the same officer. February 28, 1863, the-officer made return on the order of attachment that, he had executed it by delivering a copy of the same-to the “tenant in possession, and by attaching a lot of ground on north side of Walnut street twenty-six and one-quarter feet front extending back same width to. alley, being same property devised by Cotton to Mary Bryant for life and to her 'children, by will recorded in will book 3, page 357.” March 6, 1863, upon proof' made in open court that “Charles Bryant and Mary Bryant, children and heirs of Mary Bryant, party defendant hereto, are non-residents of this State,” an order of warning, was made, and June 26, 1863, judg
But it appears that in 1868, within five years from the rendition of the judgment, there was the following proceeding: “Came the defendants, Charles and Mary Bryant, Mary B., Sarah A. and John W. Bryant, by counsel, and filed their answer herein with notice executed on the plaintiff, and said defendants moved the court to retry the case.” It further' appears that at the same time the defendants executed and filed the bond for costs required in such cases. With their answer they filed written evidence of title, and the several conveyances by which the plaintiff had become and was in 1856, before the taxes and assessments mentioned in the petition accrued, owner of a life estate in the lot. They denied in their answer they were liable as owners of the interest in remainder for such taxes and assessments, or that the plaintiff -was requested by Mary Bryant to pay therefor, and prayed for judgment in their favor and all proper relief. April, 1870, final judgment, was rendered in that action, setting aside the judgment of 1863, and the sale made in pursuance of it, and dismissing the petition of the plaintiff, Pillion.
This action was instituted in 1883 by Mary Stanley and others, children of Mary Bryant and devisees of the will of William Cotton, against J. H. Kellar and
1, As appellant claims under the will of William Cotton, it does not seem to us she is in a position to call in question its validity, or deny it has been in due form of law probated and admitted to record in this State.
2. Nor can she defeat the action upon the ground the lot in controversy is not sufficiently identified; for it is described in the deed from Delph to Pillion, in the
3. The right of the owner of the fee in remainder to maintain an action during the tenancy for life and against the life tenant to establish his claim to real property, or to quiet his title, was recognized by this court in. Simmons v. McKay, 5 Bush, 25, and is not denied- by counsel for appellant. But’ it is contended that, as it is an action not specially provided for in chapter 71, General Statutes, it can, according to section 9, article 3 of that chapter, only be commenced within ten years next after the cause of it accrued.
It has been repeatedly held that limitation does not, during the existence of the particular estate, run in favor of the tenant for life against the owner of the estate in remainder; and that being so, it would seem that an action to quiet his title might be maintained by the latter at any time before the termination of the life estate. For it is difficult to understand how the right to quiet title, or establish a claim to land, may be barred by limitation, while the right to recover the same land may exist for an indefinite period afterwards.
It is' alleged by the plaintiffs in this action that the judgment of 1863 was fraudulently procured by Fillion; but as more than ten years elapsed from the time it was rendered until the commencement of this action, it is clear that section 6, article 3, chapter 71, General Statutes, applies, and the relief cannot be given upon that ground.
5. The two main questions are, then, whether the judgment of 1870, setting aside the one rendered in 1863, and dismissing the action of Fillion, had the effect to
By section 445 of the former, substantially the same as section 414 of the present Civil Code, a defendant constructively summoned in an action might, within five years after judgment, appear in court and have the action retried as if there had been no judgment, etc. But section 448 of the old, the same as 417 of the present, Code, is as follows :
“The title of the purchaser in good faith to any property sold under an attachment or judgment shall not be affected by the new trial permitted by section 445, except the title of property obtained by the plaintiff, and not bought of him in good faith by others.”
By “good faith,” as judicially interpreted, is meant a purchase made, not merely for a consideration, but also without notice to the purchaser of an adverse claim to the property by others. For ‘ ‘ the taking an estate, after notice of a prior right, makes one a mala fide purchaser.” Hence, a purchaser pendente lite is always treated.as one with notice. (Owings’ Ex’r v. Myers, 3 Bibb, 278.)
But obviously property obtained by the plaintiff in an action against a defendant constructively summoned can not, in contemplation of section 417 of the Code, be regarded the subject of pending litigation until such defendant has entered his appearance and moved for a retrial of the action. And consequently another person may, before that is done, buy it of the plaintiff and be a purchaser in good faith. And as before the defendants in that action did actually enter their appearance
If, then, the court had, when the judgment of 1863 was rendered, jurisdiction of the persons of the defendants, and of the subject of the action, the sale to Pillion was legal, and the title acquired by appellant, as his remote vendee, is valid; otherwise, not.
By the warning order made in the case, jurisdiction ■of the persons of the defendants may be conceded as .having been acquired; but whatever jurisdiction of the subject of the action there was, if any at all, existed alone in virtue of the attachment, for there was no other lien upon the lot.
Section 221 (194) of the former Civil Code provides that the plaintiff may, at or after the commencement of an action, not before, have an attachment against the property of the defendant. And in Hall v. Grogan, 78 Ky., 11, it was held by this court that “there is no lis pendens until a summons is issued or a warning order made,” and that the attachment in that case was void, because there was no summons or warning order when it was issued.
Section 65 (39) is as follows: “An action is commenced by filing in the office of the clerk of the proper court a petition stating the plaintiff’s cause of action, * and * by causing a summons to be issued, or a warning order to be made thereon.”
As before stated, no warning order was made until
The record does not show the precise day the petition was filed, but it may be assumed it was previous to or on February 27, the date of the attempt to issue the summons and of the order of attachment.
What purports to be a summons in this case is merely a command to the marshal “to summon the unknown children of Mary Bryant and Charles Bryant, her husband, to answer,” etc., whereas, section 40 (66) of the Code requires that “the summons shall command the officer to whom it is directed to summon the defendant named therein to answer the petition filed by the' plaintiff, giving his name, at a time stated therein, under the penalty of the petition being taken for confessed,” etc. Independent of the qilain language of the law requiring the summons to contain the name of the' defendant, it is manifest it never was intended to leave to the officer the discretion, or to impose upon him the duty, of identifying defendants whose names are not given in the summons or known even to the plaintiff.
It seems to us the paper issued by the clerk in this instance as a summons can not be regarded as such, but is fatally defective.
As, therefore, there was neither a summons or warning order against the defendants when the attachment was issued, it must, in obedience to the clear requirement of the Code, and following the case of Hall v. Grogan, be held void. And being so, the court had
Wherefore, the judgment is affirmed.