170 Ky. 153 | Ky. Ct. App. | 1916
Opinion of the Court by
Dismissing first appeal and affirming on second appeal.
In the year 1896, A. T. Russell recovered a judgment against John B. Steel for the sum of $149.70, with interest and costs. Execution issued and was returned ‘ ‘no ' property found.” In the same year Russell brought another action, in which he sought to subject to the ’ payment of his debt certain real estate owned by Mrs.' Steel, on the ground that it had been paid for and im-. proved by John B. Steel. It clearly appeared that the property had been conyeyed to Mrs. Steel by her father." Subsequently the particular real estate .sought to be . subjected was sold and' Mrs. Steel purchased a farm - situated'in McCracken county and containing one hundred and forty-nine acres! To obtain a portion of the purchase money she and her husband mortgaged the tract of land to'F. 'Harrison for the sum of $575.00. The interest on this mortgage was kept paid and the amount due in the year 1910 was $479.00. Mrs. Steel died in the year 1899. She was survived by two children, a son, C. E. Steel, who was born in the year 1891, and a daughter, Mary J. Steel, who was born in the year 1898. In ■ the year 1912, Mary J. Steel married George E. Reynolds.
After the death of Blanch Steel, wife of John B. Steel, A. T. Russell, by amended and supplemental petition, sought to subject to the payment of his debt John B. Steel’s curtesy estate in his wife’s land. The infant children of Mrs. Steel were not parties to this proceeding. Finally, Russell had appraisers appointed, who - set apart to John B. Steel a homestead consisting of sixty acres, and the court, in June, 1910, ordered John B. Steel’s life interest in the remainder of the farm, con- - sisting of eighty-nine acres, sold to satisfy Russell’s judgment. The sale was made by the master commissioner and Russell became the purchaser. .
■ On August 12th, 1910, A. T. Russell, Jr., the only child of A. T. Russell, and Mrs. A. T! Russell, widow of A. T. Russell, deceased, began another, action against John B. Steel and the two infant children, and asked a sale of the eighty-nine acres on.the-ground that they and the defendants owned jointly a vested estate in possession and that the property could not be divided without materially impairing its. value. In this petition v plaintiffs set out the note and’ mortgage executed by':
On July 14th, 1914, Mary J. Steel Reynolds, suing by her husband as next friend, brought the second suit mentioned in the caption against her father and brother for a sale and division of the entire tract of one hundred and forty-nine acres. John B. Steel pleaded the proceedings and judgment rendered in the action of A. T. Russell, Jr., &c. v. John B. Steel, above set out, in bar of plaintiff’s right to have any portion of the eighty-nine acres sold. On final hearing the court adjudged a sale of the sixty acres set apart as a homestead, but held that Mary J. Steel Reynolds had no interest in the remaining eighty-nine acres purchased by her father. From the judgment so rendered' Mary J. Steel Reynolds prosecutes the second appeal mentioned in the caption.
However, appellant being an infant, may yet in the circuit court, upon due notice to all the parties to the aetion, raise the question above presented.
The first appeal mentioned in the caption is dismissed. On the second appeal the judgment is affirmed.