103 Ky. 356 | Ky. Ct. App. | 1898
delivered the opinion op the court.
To secure the payment of three notes, dated February 1, 1894, one to W. H. Rice for $1,045, one to John W. Boulden for $3,580, one to the State National Bank for $2,100, the appellant, J. A. McKibben, executed and delivered to the parties named a mortgage on a certain
It is insisted on this appeal that the court was not authorized to render the judgment at the time it was entered.
“The plaintiff in an action for enforcing a lien on property shall state in his petition the liens held thereon by others, making them defendants; and may ask for and obtain a judgment for a sale of the property to satisfy all said liens which are shown to exist, though the defendants fail to assert their claims. Such defendants shall not, however, be allowed to withdraw or receive any of the proceeds of such sale, until-they have shown their right thereto by answer and cross petition. But, unless a personal judgment be prayed for in such cross petition, there need not be any summons thereon; and it shall be treated with reference to the time of answering thereto as a set-off or counter claim.”
The plaintiff complied with this section by stating the liens held by others, and in making lien holders defendants. The plaintiff alleged that the land could not be divided without materially impairing its value; and that it was best for all the parties, including the mortgagor, that the tract of land should be sold. This allegation was sustained by an affidavit filed in the action. Although persons holding liens upon property upon which a plaintiff’s lien exists, might not want to enforce their liens, still it is within the power of the plaintiff to obtain the sale of the property to satisfy the liens upon it. If this were not true, then one person holding a lien upon property could prevent a sale of it to satisfy other liens upon it. When a lien holder is made a defendant, it is not necessary for him to answer in order to entitle
The fact that the plaintiff could not state what, if any part of the debts, had been paid to Boulden and the State National Bank, did not make it erroneous for the court to order a sale of the property to satisfy the liens upon it. It is not supposed that the plaintiff would be able to state the exact amount due each lien holder, besides, under the provision of the Code mentioned, that could be ascertained when the defendants asserted their right to receive their share of the proceeds of the sale. Had it been necessary for the plaintiffs to have been definite in stating the exact amount of liens held by others in order to entitle them to a sale of the property, then that necessity was obviated because the other lien holders filed answers and cross petitions making definite and certain the amount of their respective claims, and the appellant failed to controvert their statements.
The judgment is affirmed.