Shields v. Yellman

100 Ky. 655 | Ky. Ct. App. | 1897

JUDGE HAZELRIGG

delivered the opinion or the court.

Appellee Yellman and bis wife, executed a mortgage to Shields on certain lands of the wife, in Jessamine county, to secure a debt of the husband.

The wife died intestate in Fayette county, leaving one child. She had no personal estate, and there was no administration. This suit was then brought by the mortgagees in the Jessamine Circuit Court for a sale of the land to satisfy the debt. After its sale, at which the plaintiffs became the purchasers, they became doubtful of the jurisdiction of the court, and raised that issue by an amended petition and by exceptions to the commissioner’s report of sale. The chancellor overruled the exceptions and upheld the jurisdiction of the Jessamine court. We think this ruling correct. This was not an action to settle the estate of a deceased person, and for that reason required by section 65, of the Civil Code, to be brought in the county in which the personal representative was qualified. Nor in our opinion does subsection 3, of section 62, of the Code apply to an action of this kind.

There it is provided that actions for the sale of real property under a mortgage must be brought in the county in which the subject of the action is situated, ■except for debts of a decedent. It seems to us that this exception had reference to and was made in view of the provisions of section 65.

It is manifest that if an action was pending to settle the estate of a deceased person, and mortgage liens were set up, the court, where the personal representative was qualified, alone having jurisdiction of such action, must also have jurisdiction to decree a sale of the mortgaged property, although it may be situated in another county. Hence the riecessity for an excep: tion to the general rule.

In this case there was no personal representative, and no suit to settle the estate. Moreover, it was a suit to sell the husband’s interest as well as that of his wife’s, and for his debt, and we do not see how i* a suit in Fayette county his interest could have been sold, the action as to him being clearly local. But in distributing the surplus proceeds of the sale the husband was given his full share as tenant by the curtesy in the whole tract over the objection of the guardian ad litem of his child. It seems to us that, as from the averments of the petition this debt was that of the husband, the value of his interest ought to have gone to pay his debt, which would seem to leave the entire surplus for the child. This being true it is unnecessary to pass upon the question as to whether the husband’s interest is to be fixed under the old or new law regulating his interest in his wife’s estate. Upon the return .of the case the court should adjudge the surplus proceeds to the child unless the husband should make it appear that it was in fact the wife’s debt in whole or in part.

This he should be allowed to show if he desires, as there has in fact been no issue made on that behalf or plea to which he was called on to respond.

The judgment as to the Shields is affirmed, and, as the collection of the surplus after satisfaction of the plaintiff’s .debt was suspended by supersedeas, damages will be awarded.

On the appeal of the guardian ad litem the judgment is reversed for proceedings consistent herewith.