116 Ky. 241 | Ky. Ct. App. | 1903
Reversing.
tfhis suit was begun in 1896 by Jacob Culver’s administrator to settle his estate. There was not enough personalty to pay the debts of the decedent, and his lands were described in the petition with the vie,w to selling enough of them to pay the indebtedness. The heirs at law and certain creditors, including' appellees Bowling & Greenwell, were made defendants, and had actual notice of the pendency and nature of the suit. A reference was had to the master commissioner November 14, 1896, to audit the claims against the estate. On the 29th day of May, 1897, the commissioner, who had previously publicly advertised for claimants, filed his report, showing all claims presented. There were no exceptions to this report. The court decreed a sale of enough of the land, after the allotment of a homestead to-the widow, to satisfy the claims reported by the commissioner. The laúd was sold in August, 1897, and reported to the court at the following October term. Upon exceptions filed to the sale by certain of the. heirs, it was set aside,, as was the former judgment of sale, for a misprision. A resale was adjudged to pay the indebtedness allowed. That judgment was 'entered March, 1898. The sale was made under it May 9, 1898, and was confirmed, without exception, May 28, 1898. It was not necessary, as developed by this sale, to sell all the decedent’s land to pay the indebtedness presented against the estate. On the 5th day of October, 1898, appellant bought the remainder of the land from the heirs at law, paid them the purchase money — an adequate price therefor — and took their deed of conveyance.. On November 11, 1898, a claim for $117.84 was filed in court on this action by Bowling & Greenwell. They sought to have enough of the remaining land — that sold and conveyed to-appellant by the heirs October 5, 1898 — sold to satisfy their-
In the case at bar, the creditors, Bowling & Greenwell, were named and joined in the suit as creditors, and thereby, as well as by the advertisement of the commissioner, were called- upon to file their claim as creditors, if they had any, and desired to avail themselves of the benefit of the action. They, without excuse or explanation, failed to do so till after the • commissioner had reported all claims ascertainable, till after two judgments of sale had been rendered in the action, till after the last sale to pay the debts of the decedent and the costs of the suit and of the administration
It i-s very earnestly claimed that the allegations of the petition filed by the administrator brought to settle the estate were enough to put appellant upon notice as to the existence of Bowling & Greenwell’s claim, as if his knowing of it affected him in the least. The language of the petition that is referred to is this very vague and indefinite
There is no question of fraud involved in this suit. Upon the facts recited, we are of the opinion that the pendency of the action ceased to constitute' a lis pendens lien upon the land, by reason of Bowling & Greenwell’s negligence in failing for so long to present their claim, and to prosecute it with reasonable diligence.
The judgment of the circuit court is reversed, and the cause is remanded for proceedings not inconsistent herewith.
Whole court sitting.
Petition for rehearing by appellee overruled.