Buskirk v. Joseph

• Citation: 233 S.W.2d 524,313 Ky. 773
• Parties: BUSKIRK v. JOSEPH et al.
• Decision Date: 27 October 1950
• Court: United States State Supreme Court (Kentucky)

Page 524

233 S.W.2d 524

313 Ky. 773

BUSKIRK v. JOSEPH et al.

Court of Appeals of Kentucky.

Oct. 27, 1950.

Clyde L. Miller, Louisa, for appellant.

Williams & Allen, Jackson, for appellees.

SIMS, Chief Justice.

This suit in equity was filed by appellees, Hager Joseph and wife against U. B. Buskirk, D. G. Sublett, R. L. Arnett, June Minix and Nannie Push under § 518 of the Civil Code of Practice to set aside an order of the Magoffin Circuit Court confirming a report of sale of 200 acres of land in Magoffin County, which was purchased by Sublett; and to cancel a deed Arnett, as master commissioner, made to Sublett; and to cancel a deed Sublett made conveying the land to Buskirk. The chancellor granted the relief sought and Buskirk appeals and appellees cross-appeal from so much of the judgment as decreed Buskirk should recover $300 from them.

Appellees have owned and resided on this 200 acre farm for more than thirty years. They executed a mortgage upon the property some time before 1938 in the sum of $85 to Nannie Push and June Minix, upon which they paid $16 on June 1, 1938. Subsequently, the mortgagees took a default judgment against appellees for the balance of $69 due on the debt, and the property was ordered sold to satisfy the lien. The judgment was taken in May 1941, but the master commissioner did not sell the property until April 1942, and during the interim appellees satisfied the judgment. Before the sale was made Hager Joseph accompanied by Nannie Push, one of the creditors and a plaintiff in the foreclosure action, went to Judge Chester Bach while he was presiding in the circuit court in which that action was pending, and Nannie Push told the Judge the debt had been paid in full and the judgment satisfied. To this Judge Bach replied, 'All right, I will take care of it'.

The mortgagors and mortgagees were inexperienced in legal matters and were of the impression that this settled the case and appellees did not know differently until in October 1945, when they leased their land for oil and gas and an investigation of the title revealed a judicial sale of this farm was had in 1942 and Sublett purchased it for $115. The property had been appraised for $800 and as it did not bring two-thirds of its appraised value, the debtors had the right of redemption, KRS 426.530, and the report of sale made by the master commissioner at the April term 1942 was not confirmed until the April term 1943. The day before the sale was confirmed and the deed ordered, the master commissioner conveyed the property to Sublett, who on that same day, in consideration of $300 conveyed it to Buskirk, a nonresident, who had never been in Magoffin County and had never seen the property. Several witnesses testifying for appellees stated the property was worth $6000 at the time it was sold and one of them, a banker, stated it was worth $10,000 at the time he gave his deposition in March 1948. The proof shows that Hager Joseph and his brother inherited the land from their father and Hager paid his brother $2000 for an undivided one-half interest in it years ago.

The petition in the instant case stated the facts set out above, which are substantiated by appellees' proof. It further averred Sublett and Buskirk knew such facts but colluded with each other to defraud the Josephs of their farm and to put the title in Buskirk, a nonresident, who pretended to be an innocent purchaser for value.

Buskirk, a resident of West Virginia, filed a petition in the Magoffin Circuit Court to remove the action to the federal court on the ground that his co-defendants were not necessary parties to the action and were made defendants to prevent the action being removed to the federal court because of diversity of citizenship. The chancellor refused to remove the case to the federal court. Buskirk's general demurrer to the petition of appellees was overruled and he and Sublett filed separate answers denying collusion, and Buskirk affirmatively averred that he was an innocent purchaser of the property for $300. The joint answer of Nannie Push and June Minix, the mortgagees, admitted appellees had satisfied their judgment before the land was sold. The answer of Arnett, the master commissioner, averred the sale was regular in every respect and denied collusion.

Appellant insists the chancellor erred: 1. In refusing to remove the case to the federal court; 2. in overruling his demurrer; 3. he was an innocent purchaser for value and was entitled to judgment on the merits of the case.

The circuit court did not err in refusing to grant appellant's petition for removal because Sublett, a resident of Kentucky, had a vital interest in the litigation. Sublett conveyed the property to Buskirk for $300 and upon the setting aside of that deed Buskirk, if he were a purchaser in good faith as contended, might assert a claim against Sublett to recover the purchase money paid. For appellees to receive relief, not only the order confirming the master commissioner's report of sale must be set aside but the deed Sublett obtained from the master commissioner, as well as the deed to Buskirk must also be set aside. City Bond & Finance v. Grant, 8 Cir., 30 F.2d 671.

Appellant admits that a direct attack may be made under § 518 of the Civil Code of Practice upon an order confirming a report of sale, Crawford v. Riddle, 241 Ky. 839, 45 S.W.2d 463, but insists his demurrer to the petition should have been sustained because that pleading became a collateral attack upon the judgment when it asked that the deeds above mentioned be cancelled in addition to setting aside the report of sale.

We have cases holding that an action seeking relief other than the setting aside of a judgment is not a direct but a collateral attack thereon, some of which are Gardner v. Howard, 197 Ky. 615, 247 S.W. 933; Combs v. Deaton, 199 Ky. 477, 251 S.W. 638 and McFarland v. Hudson, 262 Ky. 183, 89 S.W.2d 877. But we have held in Newsome v. Hall, 290 Ky. 486, 161 S.W.2d 629, 140 A.L.R. 818 and in Taylor...