116 Ky. 520 | Ky. Ct. App. | 1903
Opinion of the court by,
Reversing.
S. B. Vance died July 15, 1901, and on August 16th this suit was filed by his administrator to settle his estate. It was alleged in the petition that the decedent owned at his death several tracts of land, that the personalty was insufficient for the payment of his debts, and that a sale of the real estate would be necessary. A settlement of the estate was prayed, and a sale of so much of the real estate as might be necessary to pay the debts. In this condition of the record, on September 14th on motion of plaintiff, the adminis
It was agreed on the hearing that the assets of the estate, including the rent in question, will not be sufficient to satisfy the debts of the decedent. It is insisted for the appellees that the land was under the control of the court, and that for good reasons it was ordered to be rented out, instead of being sold, and that the proceeds of the rent stand as much for the payment of the debts of «the ancestor as would the proceeds of the sale. This seems to have been the view of the circuit court. In Collins v. Richart, 77 Ky., 621, it was held that a vendor of land, who had retained a lien on it for the purchase money, but not on the rents, is not entitled to have the lands put in the hands of a receiver, and thus secure a lien on the rents. The same rule was applied to' a mortgage. Newport & Cincinnati Bridge Co. v. Douglass, 75 Ky., 705; Douglass v. Cline, Id., 621. In Taliaferro v, Gay, 78 Ky., 496, these cases were approved, and it was held that the rents accruing before the confirmation of the sale belonged to the owner of the land, and were subject to attachment by his' general creditors. In Ball v. First National Bank, 80 Ky., 501, 4 R., 400, the testator died insolvent, and the suit was filed to settle his estate. The real estate had been rented by the testator to tenants who paid the rents-monthly, and the controversy arose between the heirs and the creditors of the testator as to the title to the rents. It was.
Judgment reversed, and cause remanded for a judgment in conformity herewith. '