Caudle v. Luttrell

• Decision Date: 07 February 1919
• Parties: CAUDLE ET AL. v. LUTTRELL ET UX.
• Court: Kentucky Court of Appeals

209 S.W. 497

183 Ky. 551

CAUDLE ET AL. v. LUTTRELL ET UX.

Court of Appeals of Kentucky.

February 7, 1919

Rehearing Denied March 29, 1919.

Appeal from Circuit Court, Christian County.

Action by F. E. Luttrell and wife against B. A. Caudle and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to dismiss petition.

C. H Bush, Hunter Wood & Son, and John Stites, all of Hopkinsville, for appellants.

Thomas P. Cook, of Hopkinsville, for appellees.

CLARKE J.

This is an appeal from a judgment which set aside a judicial sale and confirmation thereof, entered in another suit at a previous term of the Christian circuit court.

In 1911, appellees, F. E. Luttrell and his wife, Sallie Luttrell, purchased of Beazley and Locker a farm in Christian county, containing about 210 acres, for which they promised to pay $1,500. By agreement with the vendors, they sold off about 27 acres of timber land for $400, and this amount was credited upon the purchase-money lien notes, leaving appellees with about 183 acres, with a lien thereon for $1,100. Later B. A. Caudle recovered against F. E. Luttrell a judgment for $100, with interest and costs, and, the execution which issued thereon not having been satisfied, he brought an action to subject F. E. Luttrell's undivided one-half interest in the land for the payment of his debt subject, however, to the purchase-money lien of Beazley and Locker, who were also made defendants, upon the whole of the land. F. E. Luttrell and Sallie Luttrell, his wife, were served with summons, and by counsel entered a demurrer to the petition, which was overruled, and they did not answer. Beazley and Locker set up their purchase-money lien upon the whole of the land, of which about $700 was still due and unpaid. At a later term of court, no defense having been interposed by Luttrell and wife, a default judgment was entered against them for the unpaid portion of the purchase money due Beazley and Locker, and ordering a sufficiency of the land to be sold to satisfy this judgment, and a sufficiency of F. E. Luttrell's undivided one-half interest in the remainder of the land to be sold to satisfy Caudle's judgment.

Pursuant to this order of sale, the master commissioner of the court sold to appellant R. A. Lindsay 107 acres of the land including all improvements, for the amount of the Beazley and Locker judgment and F. E. Luttrell's one-half interest in the remaining 76 acres, for the amount of Caudle's judgment. This sale was made on Monday, the 19th day of June 1915, as directed by the judgment. The master filed a report of his sale, stating therein that prior to the sale he caused it to be advertised as directed by the judgment, and had the land appraised by two disinterested housekeepers of the county, who appraised the whole 183 acres at $1,600, the 107 acres which was sold to satisfy the Beazley and Locker debt amounting to $719, at $1,070, and the remaining 76 acres, one-half of which was sold at $179.83, to satisfy Caudle's debt, at $530. This report was filed by the master in term time on the 30th day of June, 1915, and passed for exceptions to July 3d, when, no exceptions having been filed, the sale was confirmed.

R. A Lindsay, the purchaser of both tracts, thereafter paid his purchase bonds, and procured a deed from the master commissioner on the 6th day of November, 1915, after the same had been produced and approved in open court; and at the same time a writ of possession was awarded to him for the 107-acre tract. In December, 1915, Lindsay sold to appellant C. W. Clark the 107-acre tract thus purchased by him. On the 26th of May, 1916, appellees F. E. Luttrell and wife filed this independent action against Lindsay, Caudle, Beazley, and Locker, and later by amended petition against Clark, seeking to set aside the sale and confirmation thereof in the former action, and to cancel the deeds to Lindsay and Clark, alleging that both the sale and confirmation were void because the master had not advertised the sale as directed by the judgment; the appraisers who were selected and attempted to act as such were not qualified as required by law; no appraisement was made after the sale of the separate tracts sold; the land was worth $3,500 rather than $1,600, at which it was valued in the attempted appraisement, and that upon a fair valuation it was sold for less than two-thirds of its value; that neither of the plaintiffs, F. E. Luttrell or his wife, knew of or were present at the sale, but "were told that day that it had been sold," and this was all they knew about it; they admit that the judgment and order of sale were regular...