Bowles' Guardian v. Johnson

Decision Date11 February 1927
Citation218 Ky. 221
PartiesBowles' Guardian Ad Litem v. Johnson, et al.
CourtUnited States State Supreme Court — District of Kentucky

1. Executors and Administrators — Purchasers at Judicial Sale of Property in Process of Administration Could Attack Void Judgment Under which Sale was Ordered. — Where judgment under sale of property in process of administration was had was void, because of failure to join as defendant, infant daughter of intestate, purchasers at sale, in suit to set aside sale bonds, could attack judgment, as judgment void on its face confers no rights, and doctrine of caveat emptor did not apply.

2. Judicial Sales — Judgment Confirming Judicial Sale is Distinct from Judgment Authorizing Sale, as Affects Vacation of Sale. — Judgment by which sale is confirmed is separate and distinct from judgment under which sale is made, as regards right to have it set aside.

3. Judicial Sales — Purchaser at Valid Judicial Sale is Bound by Order of Court Confirming Sale as in Case of Defendant Judgment (Civil Code of Practice, Sections 344, 518). — Where purchaser buys at valid judicial sale, court, having confirmed sale, is without jurisdiction to vacate or modify it at subsequent term, as purchaser is required to take notice of proceedings as if formally served with process, relief for irregularity not discovered before confirmation being by application for new trial, under Civil Code of Practice, section 344, or application for vacating judgment, under section 518.

4. Judgment — Void Judgment May be Collaterally Attacked as to Rights Claimed Thereunder, — As void judgment can neither bestow nor extinguish any right, right asserted thereunder may be attacked collaterally.

5. Executors and Administrators — Purchasers Under Void Judgment Could Set Aside Sale of Property in Process of Administration, in Spite of Confirmation, where Judgment Confirming Sale was Also Void. — In suit by purchasers at judicial sale of property in process of administration, where judgment under which sale was had was void for failure to join infant daughter of intestate, sale could be set aside, notwithstanding judgment of confirmation was entered, where infant was not before court at time of confirmation; judgment of confirmation being void, as well as judgment ordering sale.

6. Executors and Administrators — Judicial Sale of Intestate's Property Under Judgment Void as to Infant Daughter Should be Set Aside at Instance of Purchasers, Though Beneficial to Infant. — Sale of property in process of administration, under judgment void because of failure to join intestate's infant daughter, should be set aside in suit by purchasers, though sale was advantageous as to price and beneficial to infant; void judgment being nullity.

7. Executors and Administrators — Whether Sale Under Judgment, Void as to Intestate's Infant Daughter, was Valid Because Widow and Mother had Been Parties, Could Not be Considered, in Absence of Objection by Them to Setting Aside Sale. — In suit to set aside judicial sale of intestate's property in process of administration, under judgment void because infant daughter was not made party, court could not consider effect on judgment of fact that widow and mother of intestate had been parties, where they did not object to setting aside sale or join in appeal.

Appeal from Pike Circuit Court.

J.P. HOBSON, JR., for appellant.

MOORE & CHILDERS for appellees.



After our decision in the case of Bowles, et al. v. Bowles, Jr.'s, Admr., et al., 211 Ky. 250, 277 S.W. 260, the appellees, whom we shall call the purchasers, filed an intervening petition in that action by which they sought to obtain the cancellation of certain sale bonds executed by them for property purchased at judicial sale. They were successful. The court accorded them the relief sought and this appeal is prosecuted from the judgment according them that relief, by the guardian ad litem for Joe Mack Bowles.

John C. Bowles, Sr., died intestate in June, 1910, and left surviving him his widow, Malinda Bowles, now Malinda Rutroff, and one son, John C. Bowles, Jr., and to John C. Bowles, Jr., there passed under our laws of descent and distribution, the real estate of John C. Bowles, Sr., subject, of course, to Mrs. Rutroff's right of dower therein. John C. Bowles, Jr., died intestate in August, 1922, and left surviving him his widow, Nola Bowles, and an infant daughter, Joe Mack Bowles, then less than two years of age, and to them the property of John C. Bowles, Jr., passed under our laws of descent and distribution. John C. Bowles, Jr., owed a great deal of money, and a suit was brought to settle his estate, and to sell a portion of his real estate for the payment of his debts. His mother, Mrs. Rutroff, made a claim for dower in this property as the widow of his father, and Nola Bowles also claimed dower in this property as his widow. See Bowles v. Rutroff, 216 Ky. 557, 288 S.W. 312. The little girl, Joe Mack Bowles, was not made a party defendant. The court entered a judgment directing the master commissioner to sell certain property of John C. Bowles, Jr., for the payment of his debts. On February 4, 1924, some property known as the Division street property was sold for $20,100.00 and was purchased by the appellees, Johnson, et al. This sale was regularly reported, the report laid over for exceptions, no exceptions were filed, and on March 19, 1924, the sale was confirmed. The debts proven against the estate of John C. Bowles, Jr., exceeded the expectations of the parties, and it became necessary to sell more property. On June 2, 1924, under this same judgment the master commissioner sold certain property known as the College street property, which was purchased by C.C. Bowles and Mack Bowles. That sale was reported, whereupon C.C. Bowles and Mack Bowles filed exceptions. Their exceptions were overruled and they appealed, and in the case of Bowles v. Bowles, supra, we held their exceptions were well taken, that the judgment under which the property had been sold was void because the little girl, Joe Mack Bowles, had never been made a defendant. Thereupon Johnson, et al., filed an intervening petition in this original proceeding setting up these facts, asking for a cancellation of the sale bonds, which they had executed, and seeking to recover of the estate of John C. Bowles, Jr., the money they had paid on these sale bonds. A short time before, the little girl, Joe Mack Bowles, had been made a party defendant, and J.P. Hobson, Jr., had been appointed her guardian ad litem, whereupon he filed a response to this intervening petition in which he sets up and relies upon this order entered by the Pike circuit court:

"John Scott, master commissioner of this court, having heretofore and on March 10, 1924, filed his report of sale herein showing a sale of the Division street property to J.M. Johnson, R.L. Taylor, Allen Taylor, and J. Mont Lowe, at a price of twenty thousand, one hundred dollars ($20,100.00) on a credit of six, twelve and eighteen months, and no exceptions having been filed or taken thereto, it is ordered that said report be, and the same is hereby confirmed."

He insists that by this order the court has confirmed this sale, and that no one has a right to attack it except the infant defendant, Joe Mack Bowles. He insists that by virtue of this judgment of confirmation, the intervening petitioners and their bondsmen are obligated to pay the whole of the purchase price of the property bid for by them, and that after they have paid it they will be entitled to a lien for it upon the Division street property. Johnson, et al., filed a demurrer to this. Their demurrer was sustained and the court entered a judgment in which it was adjudged that the judgment entered in November, 1923, ordering a sale of this property be set aside, that the sale bonds executed by Johnson, et al., are null and void and are cancelled. From this judgment, Joe Mack Bowles, through her guardian ad litem, has prosecuted this appeal, questioning the right of the court, after the confirmation of this sale to afford to these purchasers any relief, and insisting that the doctrine of caveat emptor applies to purchasers at judicial sales, and a number of cases have been cited in support of the position taken. This liability of purchasers at judicial sales under the doctrine of caveat emptor has been a very fruitful source of appeals in this state since the adoption of our Code of Practice. Previous to that time, any substantial error to the prejudice of the party complaining and apparent in the record was sufficient to authorize a bill of review, but since then in a number of cases it has been held that a judgment confirming a sale cannot be vacated by the court which rendered it after the term at which it was rendered, except upon the grounds and in the mode mentioned in sections 344, 518 and 520 of the Civil Code. The appellant has cited and has relied upon the case of Beale v. Stroud, 191 Ky. 755, 231 S.W. 522, in which case certain land had been sold as the property of Eva Stroud and the sale had been confirmed without exceptions and the purchaser had paid for the land. It was afterwards discovered that Eva Stroud had no title to the land whatever, and the purchaser, Beale, was ousted from its possession. He sought to recover of Eva Stroud, et al., the purchase price. A general demurrer was sustained to his petition and that action was affirmed by this court. A vast number of cases might be cited to the same effect. For example, the case of Williams, et al. v. Glenn's Admr., 87 Ky. 87, 7 S.W. 610, 9 R. 941, 12 Am. S.R. 461; Trigg v. Jones' Admr., 102 Ky. 44, 42 S. W. 848, 19 Ky....

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