120 Ky. 263 | Ky. Ct. App. | 1905
Opinion by
Affirming.
Herman Rothschild owned about 400 acres of land
It is' settled in this State that an order confirming a judicial sale is á final judgment, over which the court rendering it has no control after the expiration of the term, at which it was entered. (Carpenter v. Strother, 16 B. Mon., 295; Megowan v. Pennebaker, 3 Metc., 502; Thompson v. Brownlie, 76 S. W, 172, 25 Ky. Law Rep., 622; Dawson v. Litsey, 10 Bush, 408, except for the causes mentioned in secs. 518, 340, Civil Code Practice, regulating the granting of new trials after the term at which the judgment may have been rendered (Hocker v. Gentry, 3 Metc., 463; McManama v. Garnett, 3 Metc., 517).
Sec. 521, Civil Code Practice, requires, as a condition precedent to a complainant’s right to have a new trial under see. 518, that he must state in his application or petition, and must establish, a valid defense. It, therefore, becomes necessary to first look into the exceptions taken to the sale by the purchaser, as, if they are not a valid defense to the confirmation of the sale, the judgment of the court will not be disturbed on a mere matter of informality of practice, where no substantial injury is done to the party complaining.
• The exceptions are numerous, and go to the point of questioning the validity of the judgment, as well as its regularity. They also raise the sufficiency of the title sold to certain parts of the land. While the rule of caveat emptor applies in all its strictness to judicial sales, it is not thought that, when a purchaser before confirmation shows a failure of the title in some material particular, a court of equity may not relieve him of his bid, where it was made under a clear misapprehension of fact or law, inducing the bidding.
Exception No. 1 is because the records of the Shelby county court clerk’s office show an unreleased lien against part of the land sold, being for a balance of purchase money, evidenced by notes due March 1, 1887, and March 1, 1888, respectively. As more than 16 years have gone since a cause of action arose upon the notes, they must be deemed barred by limitation against the decedent’s estate. (Secs. 2514, 2528, Ky. St., 1903; Yeates v. Weedon, 6 Bush, 438; Prewitt v. Wortham, 79 Ky., 287, 2 Ky. Law Rep., 282; Kendall v. Clark, 90 Ky., 179, 11 Ky. Law Rep., 980, 13 S. W. 583.) Even if kept alive by promises or payments in the meantime, they are nevertheless barred as liens against the land, in the hands of a subsequent innocent purchaser for value. (Tate v. Hawkins, 81 Ky., 577, 5 Ky. Law Rep., 626, 50 Am. Rep., 181; McCracken County v. Mercantile Trust Co., 84 Ky., 344, 8 Ky. Law Rep., 314, 1 S. W., 585.)
The second exception is that in 1859 certain named persons, as heirs at law of one Thomas McClain, purported to convey to Herman Rothschild a parcel of land now sold under the court’s decree; that as a matter of fact, the grantors in that deed were not the only heirs of Thomas McClain; that certain others, some of whom were then infants, were also heirs, and, as such, owned undivided shares of that tract; that the deed was invalid for certain informalities, and, by reason thereof, failed to convey the title of certain others of the heirs, námed as grantors, and that the statutes of limitation cannot be invoked by Rothschild, because, being a mere joint tenant in the
The third exception goes to the sufficiency of the title to some 15 acres to which Lhe Rothschilds do not show any proper conveyance. It is alleged in the petition, however, as well as otherwise shown in the record, that Herman Rothschild, and those claiming under him, had been in the actual adverse possession of this parcel of land, claiming and using it openly
The fourth exception raises the question of the validity of the calling of the special term of court for February 20, 1904, which will be particularly noticed further along.
The fifth exception complains that the judgment of sale is void, for each of two reasons: “ (1) Because it is not sufficiently stated that the property sold is ‘a vested estate in possession. ’ ’ ’ Under sec. 490 of the the Civil Code of Practice, only such estates can be sold under this proceeding. The petition does set out the character of the title owned by the parties, which shows on its face a vested estate in possession — the correct manner of pleading that fact, instead of using the pleader’s conclusion without the facts. And: “(2) This suit was brought, as shown by the pleadings, under subsec. 2 of sec. 490, Civ. Code Prac., for the purpose of selling the real estate described in the pleadings, that the proceeds of sale might be divided among those entitled; that it is not possible to do this, under this sale, because all the property described in tire petition was sold as one tract, and said property is composed of tracts of land derived from three different sources, in which plaintiff and defendants are interested in different ways and in different proportions.” The land sold as a whole for $46.50 per acre. It was appraised as a whole
The sixth exception is that one of the defendant owners (Samuel Bothschild) was a married man, that his wife was not joined in the suit, and that her inchoate dower in her husband’s interest in the land is a cloud upon the title sold. (Sec. 495, Civ. Code Prac.; Woman’s Club v. Reed, 64 S. W., 739, 65 S.
The seventh exception relates to apparent discrepancies in the description of the boundary as shown by a comparison of the petition and the commissioner’s report of sale and deed. It is not claimed, though, and doubtless is not a fact, that the land ordered to be sold was not actually sold, and that the descriptions of it, both in the petition and in the commissioner’s report, do not fully cover it. The discrepancy occurred by reason of a resurvey caused to be made by the commissoiner, and referred to in the order confirming his report. The. objection- is not substantial. Until some error is pointed out, the niceties for exact verification desired by abstractors will not be allowed to control, and- to upset an otherwise regular judicial sale. The sale passes the title, notwithstanding there may have been a misdescription in the judgment or commissioner’s deed; the land intended to be sold being manifest. (Hildebrand v. Bunnschu, 40 S. W., 920, 19 Ky. Law Rep., 430.)
The eighth exception complains that the survey last alluded to was not filed of record in the case. That can be done yet,- if desired.
The ninth éxception relates also to the description. The description is by metes and bounds, courses and distances, and is as explicit in form as is customary— indeed, more so — and sufficient in every sense. It is not claimed that it is erroneous in any material particular.
The eleventh exception is that taxes to the amount of $66.30 assessed against the land for the year 1903 had not been paid. Though a lien on the land, they were not due when the sale occurred. The proper practice is to have their amount credited on the sale bonds, and for the purchaser to pay them, or to require them to be paid out of the purchase money fund in court.
The twelfth exception is that one of the owners (A. Rothschild) conveyed his interest to another (Louis Rothschild) by deed dated July 9, 1898, reciting that $1,000 of the purchase money was not paid, and reserving a lien on the land to secure it; that A. Rothschild is dead, and that his personal representative has not been made party to the suit, and the lien has not been released. Let the personal representative be made a party before the purchase money is distributed, and his rights fully adjudged, and the money paid to him out of the fund in court, and the lien released by judgment of the court, unless it is done voluntarily sooner. •
The final objection is that one of the daughters is claimed to have died testate in Colorado, devising to her sister all her property, including her interest in the lands sold; that the will offered for probate in Colorado is being contested; and that her interest in the lands is in abeyance. If the .will is probated,
We thus conclude that taking as true, all that appellant says in his exceptions as to the state of the title, still he got a good title, the fee simple to the land bought by him, under proceedings regular upon their face, and in a court having jurisdiction of the subject-matter of the action and of the parties to it. He presents no ground- for setting aside the sale.
The remaining question is, was the special February term, 1904, of the Shelby circuit court, legally called, for otherwise its judgment confirming the sale would be invalid. By sec. 964, Ky. St., 1903, a special term of a circuit court may be held in any county whenever the business so requires, in the judgment of the judge, and may be called either by an order entered of record at the last preceding regular term in the county, or by notice signed by the judge, and posted at the courthouse door of the county for 10 days before the special term is held. “The order or notice shall specify the day when the special term is to commence, and shall give the style of each case to be tried, or in which any motion, order or judgment may be made or entered at the special term, and no other case shall be tried, or motion, order or judgment entered therein, unless by agreement of par
We conclude that appellant, as purchaser, got the complete title to all the land sold, and that the proceedings by which the sale was confirmed are without harmful error.
The judgment is therefore affirmed.