166 S.W.2d 439 | Ky. Ct. App. | 1942
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *313 Affirming in part and reversing in part.
Appellee, Frank Napier an infant, brought this action by his next friend, Lottie Garrett, to have a judgment declared void which was entered on April 4, 1928, in the case of R. F. Cox et al. v. R.O. Shehan, Adm'r of Mary Napier et al. In that action a farm of 80 acres located in Harlan County in which the infant had an interest was sold for $500 in a suit brought by creditors to settle Mrs. Napier's estate under Section 428, Civil Code of Practice and to sell the infant's real estate under Section 489, subsec. 1 to pay the ancestor's debts. By mesne conveyances this farm became the property of the appellant, Chester Skidmore.
By answer and counterclaim Chester denied the material allegations of the petition and pleaded affirmatively that he purchased the property in good faith for $1500 and enhanced its value to $3000 by improvements he put thereon. He asked that the petition be dismissed and his title be quieted; or if that was not done, that he be adjudged a lien on the property for $3000.
By an amended petition appellees made Hays Garrett, the purchaser at the decretal sale, and Minter Skidmore, who bought the farm from Garrett, parties defendant and sought to recover of the three defendants $1497.44 for the use of the property, timber cut and sold therefrom, destruction of a house and barn, changing the course of a stream on the land, and perhaps for other items of damage.
The chancellor held the judgment in the former action was void and that the purchaser at the decretal sale took no title, therefore no one claiming through him got title to the farm. He offset appellee's claim for rent and damages against appellant's claim for improvements and allowed neither to recover against the other. Chester Skidmore alone appeals and appellee prosecutes a cross-appeal.
The record in the first suit was lost and it is stipulated that the only parts thereof which have been found were the appraisement (which valued the property at $250), the advertisement of sale, the report of sale and *314 the sale bond. Mrs. Frances Jones, a deputy clerk of the Harlan Circuit Court, testified that the dockets and order books in her office showed only these facts relative to the record in the former case: It was filed on Nov. 23, 1927 (the day the administrator of Mary Napier qualified), the sheriff's return copied on the docket showed a copy of the summons was served on Lee Napier and Mrs. Lottie Garrett with whom Frank Napier, an infant under 14 years of age, resided; an order entered March 22, 1928, appointed a guardian ad litem for the infant and an order entered April 3, 1928, filed the guardian ad litem's answer; a judgment entered on April 4, 1928, directed a sale of the land for payment of Mary Napier's debts; an order entered May 8, 1928, filed report of sale and laid it over three days for exceptions, and an order confirmed the sale on May 11, 1928. Although there is no order setting aside this confirmation of sale, there is an order on Feb. 5, 1929, reporting the sale which was confirmed on Feb. 12, 1929. On Aug. 21, 1929, it was ordered that the master commissioner from the proceeds of the sale bond he had collected should pay the cost of the action and turn the balance over to the administrator who was directed to pay the claims of creditors, and for the balance, if any, he would make settlement with the county court clerk, evidently meaning it would be paid to the guardian of the infant.
Doubtlessly there were two sales of the property as it was first advertised for sale on county court day, Monday, May 7, 1928, and again advertised for sale on county court day, Feb. 4, 1929, which accounts for the two reports of sale mentioned above. There must have been an order setting aside the confirmation of the first sale and directing a re-sale of the property, else there could have been no re-sale, and we feel that a more thorough search by appellee would have revealed other orders in the first case than those he put in this record.
It is insisted by appellee that the judgment in the first case was void because; 1. the infant was not served as provided by Section 52 of the Civil Code of Practice; 2. that the guardian ad litem was appointed after judgment was rendered; 3. the judgment did not recite that the land was indivisible nor the amount of debts for which it was being sold; 4. the action was prematurely brought under Section 428 of the Code. *315
At the time the first suit was filed the father, Lee Napier, was living and both he and his infant son, Frank, were named in the summons. The sheriff's return shows a copy of the summons was handed to Lee, and to Mrs. Garrett, with whom Frank (then an infant under 14 years of age) resided. Section 52 of the Code provides. that service on an infant under 14 must be had by delivering the summons to his father. But in McComas v. Hull,
Appellee is in error when he says the guardian ad litem was not appointed until after judgment. The record shows he was appointed on March 22, 1928, filed his answer on April 3rd, and the judgment was entered the next day, April 4th. Hence, it is not necessary to further pursue this point.
The first judgment is vigorously attacked as void because it did not recite the amount of debts owing by Mary Napier at the time of her death, nor did it adjudge the land to be indivisible. That action was brought under both Section 428 of the Code to settle her estate and under Section 489, subsec. 1, to sell land of an infant for payment of an ancestor's debts. The entire record in that proceeding was lost, except the parts referred to in a former paragraph in this opinion, hence, we are unable to say what the pleadings averred or what the proof showed. The court had jurisdiction of the subject matter and of the person of the infant. Nothing appearing in the record in the instant case to the contrary, every presumption is indulged in favor of the judgment and the regularity of the proceedings, and the burden is on the attacker to prove the irregularity of *316
which he complains. 15 Rawle C. L. 875, Section 353 et seq.; Potter v. Webb,
In an action brought under Section 489, subsec. 1, it was held in Elliott v. Fowler,
"We are familiar with no authority which authorizes a sale of decedent's real estate until the necessity therefor has been established by pleading and proof. * * * The allegations of the petition and the proof before the court at the time the sale was ordered did not furnish the court the information which it should have had as to the indebtedness of the estate before ordering the sale."
This Carter case cites Harlammert v. Moody's Adm'r, 26 S.W. 2, 15 Ky. Law Rep. 839, which said that the court was authorized to sell the property if it appeared to the court that the personal estate is insufficient for the payment of all the debts, no matter whether it appeared from the report of the commissioner or from the pleadings. So it would appear that it is not indispensable for the judgment of sale to show the amount of the indebtedness or that the land was indivisible, which facts may be shown in the pleadings and proof, and may be incorporated in the master commissioner's report. As there is nothing in the record to the contrary, we presume that the pleadings and proof in the lost record of the first case show the amount of indebtedness and that the land was indivisible.
Nor do we regard as fatal to that judgment the fact that the action to settle the estate was prematurely brought under Section 428 of the Code by creditors against the administrator, the surviving husband and the heir of the decedent. Had the personal representative so desired, he could have filed a special demurrer *317
to the petition and thereby delayed that action until six months after he had qualified. Utterback's Adm'r v. Hannan,
Nothing herein written is in conflict with Soper v. Foster,
Having arrived at the conclusion that the judgment in the first case was not void, and that the purchaser at the decretal sale took good title, the questions of improvements and of rental value of the land vanish.
The judgment is affirmed on cross-appeal and reversed on the appeal, with directions that one be entered consistent with this opinion. *318