180 Ky. 629 | Ky. Ct. App. | 1918
Affirming.
On January 26, 1891, Thomas Little, for the recited consideration of $212.50 cash, and $312.50 to be paid November 1, 1891, but for an actual consideration of $100.00 cash, and three notes, one for $51.50, another for $262.50, and a third for $100.00, payable at different times-, conveyed to Bichard Boberts and his wife, Mary Boberts, a tract of land in Pike county containing 143 acres, more or less. A lien was reserved to secure the deferred payments. Shortly thereafter 'Bichard Boberts died, and W. J. Boberts, who was appointed and qualified as his administrator, brought suit against the widow and children of the decedent, and Thomas J. Little and other creditors, for a settlement of the estate, alleging that the decedent owned four tracts of land on which' Thomas J. Little and other creditors had vendors’ liens, and that the personal property of the decedent was insufficient to pay his debts, and asked a sale of so much of the land as was necessary to pay the debts. Mary Boberts was served with process and filed an answer asserting homestead in the land which she occupied. The case was referred to the master commissioner to hear proof and make a report as to the liens on the land and other debts, and as to the amount of personal property left by the decedent. He was also directed to file an accurate description of the decedent’s lands. Thomas J. Little filed a petition and claim before the commissioner for the purchase money notes due on the tract of land conveyed by him to Bichard Boberts and Mary Boberts, and asserted a vendor’s lien thereon. The commissioner filed a report allowing the. claim of Thomas J. Little and also other claims aggregating the sum of $1,375.89 without interest. This report was confirmed.. An order was then entered reciting the fact that there was not enough personal property to pay the debts and ordering a survey of the lands by W. J. Boberts. The latter surveyed the land of the decedent in nine tracts and filed a report accurately describing each tract. Tract No. 7 as described in that report is the tract of land conveyed by Little to Bichard Boberts and wife. A judgment of sale was then rendered. In this judgment it was adjudged that it was necessary to sell the decedent’s lands' in order to pay his debts. Thomas J. Little was adjudged a lien on tract No. 7 for the sum of $440.00
In tbe month of August, 1915, Mary Roberts brought this suit against John Roberts to set aside tbe commissioner’s deed conveying to him tract No. 7, and to recover a half interest in that tract. Besides other defenses, John Roberts pleaded that plaintiff was a party to tbe foregoing proceedings and that her rights to tbe property in question were concluded thereby. Judgment was rendered in favor of tbe defendant and plaintiff appeals.
The entire tract conveyed by Little to plaintiff and her husband, was subject to Little’s vendor’s lien. Plaintiff was served with process on tbe petition in tbe settlement suit. Tbe petition set up Little’s lien and tbe necessity for tbe sale of tbe decedent’s lands to pay bis' debts. Tbe necessity was shown by tbe commissioner’s report and Little’s lien claim was allowed. Little did not seek a personal judgment either against tbe decedent’s estate or -against plaintiff, but merely asked an enforcement of bis lien. Under these circumstances it was not necessary to issue process on tbe pleading filed by Little and serve it on plaintiff or tbe other parties, since tbe court bad tbe power to order a sale of tbe land even though no pleading was filed by Little. Civil Code, sec. 692; Union Trust and Savings Co. v. Marshall’s Admr., 130 Ky. 206, 113 S. W. 73. Plaintiff bad no interest in tbe land in controversy until the lien debt was paid. Tbe land was ordered sold and did not bring enough to pay tbe debt. No exceptions were filed by plaintiff either to the judgment or report
Judgment affirmed.
