Dismissing Appeal.

In John W. Harper v. C.K. Davis et al., 294 Ky. 603, 172 S.W.2d 445, will be found a statement sufficient to show the question presented by this appeal. Harper, as privy in interest of Davis, prosecutes this appeal from the judgment of September 1940, setting aside the judgment of 1937 and all proceedings subsequent thereto, including the sale and commissioner's deed executed to Davis. An appeal was granted to Davis from the September 1940 judgment but he failed to prosecute it and Harper, claiming to be privy in interest to Davis, therefore does so.

In view of the fact that in the other case we decided that Harper knew that Mrs. Gilliam had an interest in the property and was therefore not an innocent purchaser and, consequently, held title to the property subject to Mrs. Gilliam's claim thereto, the present appeal presents a moot question — even if the judgment appealed from should be reversed the property in the *Page 758 hands of Harper, who claims title through Davis, would still be subject to Mrs. Gilliam's claim.

Ordinarily the two cases would have been disposed of in one opinion but they were submitted at different times and since there was no motion to consolidate or hear together we were unaware of the pendency of this appeal until after the decision in the first case.

Since the appeal presents a moot question it should be, and is, dismissed.