Bowles' Guardian v. Johnson

Decision Date11 February 1927
Citation291 S.W. 29,218 Ky. 221
CourtKentucky Court of Appeals

Appeal from Circuit Court, Pike County.

Proceeding by Nola Bowles, administratrix of the estate of John C Bowles, Jr., against Malinda Bowles Rutroff and others, in which judgment was entered decreeing a sale of certain property of intestate, with intervening petition by John M Johnson and others for cancellation of sale bonds given for property purchased at a sale under the judgment, which was opposed by Joe Mack Bowles' guardian ad litem. Judgment for petitioner, and contestant appeals. Affirmed.

J. P Hobson, Jr., of Pikeville, for appellant.

Moore & Childres, of Pikeville, for appellees.


After our decision in the case of Bowles et al. v. Bowles' Adm'r 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, 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 herein of the Division street property to J. M. Johnson, R. L. Taylor, Allen Taylor, and J. Mont Lowe, at a price of $20,100 on a credit of 6, 12, and 18 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 canceled. 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 Adm'r, 87 Ky. 87, 7 S.W. 610, 9 Ky. Law Rep. 941, 12 Am. St. Rep. 461; Trigg v. Jones' Adm'r, 102 Ky. 44, 42 S.W. 848, 19 Ky. Law Rep. 1009; Rochester et al. v. Owen, 197 Ky. 170, 246 S.W. 32; Dotson v. Merritt, 141 Ky. 155, 132 S.W. 181; McGuire et al. v. Garrett, 207 Ky. 714, 270 S.W. 4; Fox et al. v. McGoodwin's Adm'r, 56 S.W. 515, 21 Ky. Law Rep. 1776; Bank v. Peter, 13 Bush, 591; Schlosser v. 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 Ky. Law Rep. 384; Costigan v. Truesdell, 119 Ky. 70, 83 S.W. 98, 26 Ky. Law Rep. 971, 115 Am. St. Rep. 251; Thompson v. Brownlie & Co., 76 S.W. 172, 25 Ky. Law Rep. 622; McNeill v. Thompson, 84 S.W. 1145, 27 Ky. Law Rep. 289; McNeill v. Thompson, 178 Ky. 90, 198 S.W. 571, and many others. In all of these cases the court has adhered to the doctrine of caveat emptor, which merely means that the court does not give any warranty of title when property is sold under its order, and a careful examination of these cases will disclose that in each instance the ground for the purchaser's complaint was either that there was some defect in the title of the judgment defendant, that some undisclosed lien had been discovered to exist upon the property, or that the judgment was erroneous.

It is well to note, before going further, that the judgment by which a sale is confirmed is a separate and distinct matter from the judgment under which the sale is made. When a man buys at a valid judicial sale, he thereby becomes a party to the action, and it is just as incumbent upon him to take notice of the proceedings thereafter as if he had been formally...

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