Barry v. Baker

• Decision Date: 05 June 1906
• Citation: 93 S.W. 1061
• Parties: BARRY et al. v. BAKER.
• Court: Kentucky Court of Appeals

93 S.W. 1061

BARRY et al. v. BAKER.

Court of Appeals of Kentucky.

June 5, 1906

Appeal from Circuit Court, Campbell County.

"Not to be officially reported."

Action by H. N. Baker against John Barry and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

C. T Baker, for appellants.

Chas M. F. Striger, for appellee.

NUNN J.

The facts of this case are about as follows: One W. J. Barry died intestate in Campbell county in February, 1892, and left surviving him only five children as his heirs at law, viz John Barry, W. C. Barry, Ada, who married Taylor, Margaret who married Baker, and Shaler R. Barry. There descended to these children four tracts or parcels of land. One tract contained 106, another 29, another 6, and the other 132, acres. Soon after the death of their father, John Barry purchased and received a deed of conveyance from his brother, W. C. Barry, for his one-fifth interest in all the tracts. In a short time after his conveyance, John borrowed from one Perry about $800 and executed to him a mortgage to secure this loan upon John's two-fifth interest in all the tracts. Shortly after this John purchased from his sisters, Ada and Margaret, their respective interests in all the land. In the conveyance from Ada to John she retained a lien for $1,500, the purchase price. Margaret retained a lien for about $1,100. It appears that neither of these sums, nor any part thereof, have been paid. After these purchases, in the year 1894, John Barry filed an action in the Campbell circuit court, and sought a division of these lands between himself and infant brother, Shaler R. Barry. To that action Shaler R., Ada, and Margaret were made defendants. The mortgagee, Perry, was not made a party. Commissioners were appointed to divide the land, and they allotted to John the whole of the 106, 29, and 6 acre tracts, and 52 acres and a fraction of the 132-acre survey, as his four-fifth interest in his father's lands, which he obtained by descent and purchase. The balance of the 132-acre tract to wit, about 80 acres, was allotted to Shaler R. The report of the commissioners was confirmed, and conveyance made to the parties, John and Shaler, in accordance with the division. In this partition suit Ada and Margaret made known to the court the existence of their liens for purchase money, and the court by order directed its commissioners, in making the deed to John, to retain a lien for this purchase money upon the whole of the land allotted to John. The commissioner performed this order.

About the year 1895 the mortgagee, Perry, sold his note and mortgage to one Mills, and he instituted, in the year 1897 an action in the Campbell circuit court against John Barry and wife for the enforcement of his mortgage lien. To this action Shaler R. Barry, Ada Taylor, and Margaret Baker were not made parties. An order of court was obtained, and the commissioner sold under it the two-fifth interest named in the mortgage in each and all the tracts of land, disregarding the rights and interests of Shaler R., Ada, and Margaret in the lands, and their liens thereon. At this sale one J. W. Rapp purchased the two-fifth interest in the 106-acre tract at the price of $600, when it was valued by the appraisers at $1,272. The plaintiff in that action purchased the two-fifth interest in the 29 and 6 acre tracts, at the price of $156 and $35.20, when they were valued, the one at the price of $234, and the other at $52.50. The two-fifth interest in the 132-acre tract was purchased by appellee, H. N. Baker, at the price of $450, when it was appraised at $1327.20. These sales were confirmed, and, possibly deeds were made to the purchasers; and each of them instituted an action to have their respective two-fifths interest allotted from the several tracts. The appellants, John Barry, Ada Taylor, Margaret Baker, and Shaler R. Barry, were made parties defendant to each of the actions. The court made an order consolidating them. After they had remained on the docket for some time, the actions of Rapp and Mills were dismissed, and the action of appellee alone remained on the docket. The appellee filed an amended pleading, stating that while the value of the 52 acres of the 132 was not equal to the two-fifth of the whole, yet he was willing to accept same in satisfaction of his purchase. Upon the trial of the action the court, over the...