Walker, &C., v. Smyser's ex'Rs, &C.

• Citation: 80 Ky. 620
• Parties: Walker, &c., v. Smyser's ex'rs, &c.
• Decision Date: 16 December 1882
• Court: Court of Appeals of Kentucky

Page 620

80 Ky. 620

Walker, &c., v. Smyser's ex'rs, &c.

Court of Appeals of Kentucky.

December 16, 1882.

APPEAL FROM LOUISVILLE CHANCERY COURT.

W. P. D. BUSH, D. B. SANDERS, P. B. MUIR, AND D. J. HEYMAN FOR APPELLANTS.

COPYRIGHT MATERIAL OMITTED

BARRETT & BROWN, JACKSON & PHELPS, AND BARNETT, NOBLE & BARNETT FOR APPELLEES.

CHIEF JUSTICE HARGIS DELIVERED THE OPINION OF THE COURT.

THIS OPINION WAS SUSPENDED BY A PETITION FOR A REHEARING.

Mrs. Nannie Walker owned, as her general estate, certain lands which she and her husband conveyed to her brother, James B. Burks, in trust for her separate use during life, and in remainder to her children.

The following provisions of the deed are material to the issues which are involved in this case, to-wit:

"First. The said James B. shall hold said tracts, lots, and slaves and their increase, for the separate and sole use of said Nannie for and during her life, and after her death for her child or children.

"Secondly. In the event of her death, leaving grand-children, they are to take the part of their deceased parent or parents, and the property hereby conveyed is to be so held; and, in the event of said Nannie leaving no child or children, grandchild or children, the estate hereby conveyed is to pass to their heirs at law.

Thirdly. The said James B. shall permit the said Nannie to use and enjoy said tracts (of land) . . . and collect the rent . . in her own name, or for her he may rent out . . said tracts . . and collect and pay over to her the rent . . of the same, taking her receipt therefor, which, when given, shall be a valid and complete discharge to him therefor.

"Fourthly. Upon the request in writing of said Nannie, said James B. may, if he deem it to her interest, sell all or any of said tracts, lots, or slaves, and invest the proceeds in any other estate or stocks he may deem to be most advisable to her interest to buy, and when so sold or invested the estate or stocks acquired to be held upon the same uses and trusts as that sold; but said James B. may require a petition in chancery to be brought, asking a sale and reinvestment, and on such petition being filed against him the chancery court shall order such sale, and direct and see that such investment is made so as that said James B. shall be protected from all liability for such sale and reinvestment. To such petition said James B. shall be made a party, and said court shall, on such petition, have full power to order such sale, and pass the entire title in fee-simple to the purchaser or purchasers, and the estate or stocks acquired with the proceeds of such sale to be held upon the uses and trusts mentioned herein."

The deed was acknowledged and delivered on the 20th day of February, 1859, and on the 19th of March following Mrs. Walker and her husband filed a petition in the Louisville chancery court against the trustee, James B. Burks, Mrs. Walker being made a defendant also to the petition, alleging that, although a written request had been made of the trustee, he declined to sell the lands, and required a petition to be brought asking a sale and reinvestment; that she has no other estate than the lands, which do not yield her a support; that it would be greatly to her interest to sell them, which the defendant admits.

To the petition the trustee answered, admitting that "he required the petition to be filed, and that the real estate sought to be sold is unproductive, and ought to be sold, and the proceeds reinvested. It yields but little, and is insufficient for plaintiff's support. If sold and reinvested, estate or stocks could be purchased therewith which would yield a support. He asks a sale of the said real estate, and an investment of the proceeds in other real estate."

A decree was rendered ordering a sale of the land to be made, which was executed by the marshal of the court, and A. Harbeson was the highest bidder for lot 1 of 34 acres, 32 poles, and J. B. Parks for lots 2 and 4, containing 47 acres, 2 roods, and 30 poles.

On the 2d of December, 1859, the sales having been confirmed, deeds were executed to Harbeson and Parks, respectively, for the lots bid for by them as aforesaid.

Just twenty days thereafter, for precisely the same consideration bid by them, Harbeson and Parks conveyed the lots 1, 2, and 4, to which they had received the title, to the trustee, James B. Burks, who thus became the absolute owner of the property of his cestui que trust.

Mrs. Walker died in 1863, leaving the appellants, Charles and Elizabeth, her only children and heirs, and entitled in remainder to the trust property. On the 14th of February, 1863, John Burks, a brother of James B. Burks and Mrs. Walker, was appointed guardian of Charles and Elizabeth, and obtained an order in the nature of a loan to withdraw the money which had been paid into the chancery court for said lots of land.

Having obtained the possession of the money, John Burks failed to reinvest or account for any part of it, and became insolvent.

James B. Burks, on the 12th of March, 1864, conveyed to Lewis Smyser said lots 1, 2, and 4, containing 81 acres, 3 roods, and 22 poles.

On the 22d September, 1874, in consideration of $90,000, John Burks and wife conveyed to Lewis Smyser 350 acres of land. As part of the consideration Smyser executed his obligations for $25,000 to Mrs. Burks, and conveyed a house and lot, in the city of Louisville, to John Burks.

Smyser, becoming disquieted about his title to the 81 acres, 3 roods, and 22 poles bought by him of James B. Burks, brought this action against Charles and Elizabeth Walker to quiet the title, and also against John Burks and wife for indemnity, in the event Charles and Elizabeth should be adjudged the owners of the land, and caused an injunction to issue against Burks and wife to prevent the wife from disposing of his obligations executed to her, and enjoining the sale of the house and lot conveyed to Burks, as stated above.

Smyser charged that John Burks and Charles and Elizabeth Walker had conspired to recover the land from him for the latter, and that John Burks had fraudulently caused the notes for $25,000 of the consideration of the 350 acres to be executed to his wife, for the purpose of cheating his creditors; that the transfer of the $25,000 was wholly voluntary and fraudulent.

Other necessary and proper allegations were made in explanation at length of these transactions, which need not be mentioned.

Burks and wife controverted all the material allegations of the petition, and separately pleaded that the obligations for the $25,000 were executed to Mrs. Burks, in consideration of her potential right of dower in the 350 acres sold by John Burks to Smyser.

Pending the proceedings, a guardian ad litem was appointed to defend for Charles and Elizabeth Walker, who were infants, and John Burks was removed as their guardian, and Mr. Shipp appointed in his room.

A rule was awarded against Shipp, as their guardian, to answer Smyser's petition, but, before answering, resigned his guardianship, and the appellant, W. W. Gardner, was appointed guardian to them.

He appeared, and moved to strike out a portion of the answer filed by the guardian ad litem, and to file an answer and counter-claim for his wards, alleging, in substance, that the purchase by Harbeson and Parks was not bona fide, and was fraudulent, that their conveyances to James B. Burks were fraudulent devices of said Burks to cheat and defraud his cestuis que trust, Charles and Elizabeth, and deny that he took any title to said 81 acres, 3 roods, 22 poles by their conveyances; that Smyser knew all of these facts at the time of the conveyance to him by Burks, hence took no title under the deed from him; that Charles and Elizabeth were in being when the deed of trust was executed by their mother to James B. Burks in 1859, and were not made parties to the suit in which the decree to sell the trust estate and reinvest the proceeds was rendered; that the decree was therefore void, and did not divest their interest in remainder in the lands sold in pursuance of it.

The court refused to allow the regular guardian to make defense, but intrusted it to the guardian ad litem, and rejected the answer and counter-claim offered by the appellant Gardner, as guardian, and he appeals from that order, and from the judgment pronounced against his wards quieting Smyser's title, and Charles and Elizabeth Walker also appeal from that judgment.

Was the judgment of the Louisville chancery court, rendered in 1859, for the sale of the trust property, void, because the infant remaindermen, Charles and Elizabeth Walker, were not parties to the suit?

We will not stop to indicate the arguments of the various counsel, and dispose of them in detail; but we will, in a general way, discuss the law advanced by all, rather seeking conclusions than determining supposed propositions of law not deemed applicable to the facts of this record.

According to Heming v. Harrison, 13th Bush, 723, courts of chancery have no inherent power to sell the real estate of persons under disability.

And this seems to be the conclusion to which the authorities tend in all the States where statutory provisions regulating the sales of the real estate of infants and married women are in force.

The provision embraced by section 32, article 2, of our state constitution, seems to require the legislature to confer such powers on the courts by general laws, which was done by the legislature immediately after the adoption...