Armstrong v. Bryant

• Decision Date: 04 June 1891
• Citation: 16 S.W. 463
• Parties: ARMSTRONG v. BRYANT et al.
• Court: Kentucky Court of Appeals

16 S.W. 463

ARMSTRONG v. BRYANT et al.

Court of Appeals of Kentucky.

June 4, 1891

Appeal from chancery court, Kenton county.

"Not to be officially reported."

Tisdale & Gray, for appellant.

Collins & Finley, for appellees.

PRYOR J.

Jacob Lemaire died leaving his widow and several children. His widow was allotted dower in the realty, and left at her death W. E. Wade and Harnie Wade, who was a daughter of Lemaire, in possession of the realty. The other children and their husbands, by a proceeding in equity against Wade and wife obtained on the -- day of February, in the year 1882, a judgment for a partition of this realty between them. Wade and wife resisted the partition, and, by an appeal, brought the case to this court, and superseded the judgment, with the appellant, Armstrong, as surety on the supersedeas bond, that contained the usual stipulations. The bond was executed on the 3d of July, 1882. The bond prevented the partition, and obliged the obligees to pay rent. We see no reason why rents should not be charged against the surety from the execution of the bond until the affirmance in this court, as it does not appear when the mandate was issued or filed in the court below, or if in the record the surety is liable for rent to the date of filing the mandate. The chancellor below has made the surety liable from the date of the judgment, and this is erroneous, because the stay of proceedings did not occur until the execution of the bond which was five months after the judgment. There was no judgment for rents rendered by the chancellor, and hence the liability of the surety began when the bond was given. The chancellor, on the basis as to time, has fixed the rent at $2,200, and in this he is sustained by the testimony. He has credited this rent by the sum of $619.31 that was due Wade by the heirs, and about which there is no dispute. Wade was entitled to one-eighth of the rent, and to his wife's interest, which is one-third, all of which was allowed as a credit. The additional credit of the overcharge for five months that corrects the error below will show the balance due by Wade and his surety in the action where all of the children or those entitled united as plaintiffs. After the return of the case, a partition was ordered between the children, and each share allotted and reported to court, and the report confirmed. From that order of confirmation the defendants Wade and wife appealed, and that was affirmed, (7 S.W....