Bean v. Hoffendorfer

Decision Date08 January 1887
Citation84 Ky. 685,2 S.W. 556
PartiesBEAN and others v. HOFFENDORFER and others.
CourtKentucky Court of Appeals

Appeal from Louisville chancery court.

In equity.

D. M Rodman, F. P. Straus, and J. R. M. Polk, for appellants, Bean and others.

Lane & Burnett, for appellees, Hoffendorfer and others.

LEWIS J.

In 1874, Thomasson & Hider, street contractors, holding certain apportionment warrants issued by ordinance of the general council of the city of Louisville, for improving Broadway street, against the owners of adjacent property, instituted an action in the Louisville chancery court to enforce the lien provided in such cases by the city charter; and among others made defendants was Issac Smith, now deceased, who owned a lot of land on each side of the improved portion of the street; the aggregate amount apportioned against him being the sum of $13.43. In October, 1878, judgment was rendered in that action for a sale of the two lots to pay the sum mentioned, together with interest at the annual rate of 10 per cent., and costs, and in July, 1879, the sale was made; appellees, Hoffendorfer Bros., becoming the purchasers of both lots at the price of $73. September 19, 1879, the sale was confirmed by the court, and, as provided in such cases, the right was reserved to the defendant to redeem the property within three years, by paying the purchase price with interest at the rate of 10 per cent., and all taxes accrued. But Isaac Smith died September 17, 1882, a few days before the expiration of the time given, without redeeming and in December following the court made an order directing a deed to be executed to the purchasers, but it was not done until March, 1883.

This action was brought by the heirs at law of Isaac Smith, in October 1883, and in their petition they pray that the judgment and proceedings in the action by Thomasson & Hider be declared null and void, so far as they relate to Isaac Smith and his land; that the deed made to the defendants Hoffendorfer be set aside; and the title of the plaintiffs to the two lots be quieted. The defendants in their answer make a counter-claim, deny the material averments of the petition, and ask that the plaintiffs be required, by order of court, to quitclaim and convey to them all their (the plaintiffs') right and title to the property.

It is alleged in the petition, and satisfactorily proven, that when the summons in that action was served on Isaac Smith, in Bullitt county, where he resided, he was, and had been for several years, and continued to his death, of unsound mind by reason of a fracture of his skull, and was mentally incapable of understanding and transacting business; that none of the plaintiffs knew he was the owner of the lots in question until after his death, when they discovered among his papers a deed therefor made to him many years previously, nor did any of them know the action by Thomasson & Hider had been brought against him, or that the lots had been sold, until a few days before the commencement of this action. It further appears that the two lots are now, and were when purchased by appellees, worth between twelve and fifteen hundred dollars.

It is shown and relied on as a ground for reversal that the apportionment warrants upon which the action by Thomasson & Hider against Isaac Smith was based, were not in fact issued against him, but against L. H. Smith. This, manifestly, was the result of a mistake by the officer whose duty it was to issue the warrants, for it is not pretended that any other person than Isaac Smith was or could have been made liable for the assessment of the two lots in question.

It is alleged in the petition that the judgment was procured by the fraud of the plaintiffs in that action. But there is no positive evidence they knew of the mental condition of Isaac Smith before the judgment was rendered, nor is there any fact proved tending to establish fraud except the unexplained increase of the claim against him from the original sum of $13.43 to $73, the amount for which the two lots were sold.

We do not think there is any reason to doubt that a summons was issued in that action, and executed, on Isaac Smith, in Bullitt county; for the return on the summons by the...

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29 cases
  • Bowles' Guardian v. Johnson
    • United States
    • United States State Supreme Court — District of Kentucky
    • 11 Febrero 1927
    ...13 Bush 591; Schlosser v. Murnam 20 R. 1468, 49 S.W. 421; Kincaid v. Tutt, 88 Ky. 392, 10 R. 1006, 11 S.W. 297; Bean, et al. v. Haffendorfer Bros., 84 Ky. 685, 2 S.W. 556, 3 S.W. 138, 8 R. 739; Humphrey's Exr. v. Wade, 84 Ky. 391 8 R. 384, 1 S.W. 648; Costigan v. Truesdale, 119 Ky. 70, 83 S......
  • Bowles' Guardian v. Johnson
    • United States
    • Kentucky Court of Appeals
    • 11 Febrero 1927
    ... ... Murnan, 49 S.W. 421, 20 Ky. Law Rep. 1468; Kincaid ... v. Tutt, 88 Ky. 392, 11 S.W. 297, 10 Ky. Law Rep. 1006; ... Bean et al. v. Haffendorfer Bros., 84 Ky. 685, 2 ... S.W. 556, 3 S.W. 138, 8 Ky. Law Rep. 739; Humphrey's ... Ex'r v. Wade, 84 Ky. 391, 1 S.W. 648, 8 ... ...
  • Morton v. Wade
    • United States
    • Kentucky Court of Appeals
    • 11 Mayo 1917
    ... ... 18, 25 Ky. Law Rep. 497; ... Stump v. Martin, etc., 9 Bush, 285; Rosenham v ... Pottinger, etc., 60 S.W. 370, 22 Ky. Law Rep. 1290; ... Bean, etc., v. Haffendorfer Bros., 84 Ky. 693, 2 ... S.W. 556, 3 S.W. 138, 8 Ky. Law Rep. 739; Wilson v ... Taylor, 4 Ky. Law Rep. 437; Slaughter's ... ...
  • Ramey v. Francis, Day & Co.
    • United States
    • Kentucky Court of Appeals
    • 13 Abril 1916
    ... ... ground for setting aside the judgment ordering the sale. The ... validity of a sale is distinct from the validity of the ... judgment (Bean v. Haffendorfer, 84 Ky. 685, 2 S.W ... 556, 3 S.W. 138, 8 Ky. Law Rep. 739), and an order confirming ... or refusing to confirm a sale is a final ... ...
  • Request a trial to view additional results

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