Center v. Stamper

• Decision Date: 12 December 1958
• Parties: Bertie CENTER and Inez May, Appellants, v. George STAMPER et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 853

318 S.W.2d 853

Bertie CENTER and Inez May, Appellants, v. George STAMPER et al., Appellees.

Court of Appeals of Kentucky.

Dec. 12, 1958.

Elwood Rosenbaum, Lexington, Everett L. Miller, Campton, for appellant.

J. Douglas Graham, Campton, Beverly White, Winchester, Percy Brown, Jr., Louisville, for appellee.

CLAY, Commissioner.

This appeal is from a judgment entered in seven consolidated cases. Various phases of this litigation have been before us in Center v. Linkous, Ky., 295 S.W.2d 567; Linkous v. Darch, Ky., 299 S.W.2d 120; and Center v. American Hardware Mutual Insurance Company, Ky., 303 S.W.2d 324.

The issues on appeal involve certain real estate at one time owned by Rex Center. Three of the appellees, Moore, Stamper and E. Linkous, obtained judgments against Rex Center in tort actions brought by them, and sought to subject his property to the satisfaction of those judgments. Appellants Bertie Center and Inez May, the wife and sister respectively of Rex, claim an interest in or ownership of the land by virtue of a mortgage and deed.

In the five original actions, E. Linkous, J. Linkous, Spaulding, Moore and Stamper obtained substantial judgments in the Clark Circuit Court against Rex, who is not a party to this appeal, for personal injuries sustained as a result of an explosion of liquified petroleum gas which had flowed from a storage tank on property owned by him. The original five suits were brought in Wolfe County where the accident happened. They were subsequently transferred to the Clark Circuit Court (to which no objection was made) where the suits were consolidated. The liability of Rex has been previously adjudicated (Center v. Linkous, Ky., 295 S.W.2d 567) and is not now before us.

In two of the five original actions, Moore and Stamper asked for a general attachment against Rex and prayed that a deed from him and Bertie Center to Inez May be set aside as fraudulent. The day after the explosion Rex had conveyed his property to Inez May, his sister. In both of these actions, Bertie and Inez, the appellants, were parties defendant. In all of the original five actions appellant Bertie was made a party defendant and by answer in each case stated that she has and had no interest in the property owned by Rex.

Subsequent to the filing of these answers, Bertie filed an independent action against her husband Rex, appellee American Hardware Mutual Insurance Company and the originial five plaintiffs, in which she asserted a first lien against two tracts of real estate in Wolfe County, owned by Rex, which she alleged was created by a note for $5,500 and an unrecorded mortgage dated November 16, 1945. This was part of the same property in which Bertie had disclaimed any interest in her answer filed in the original five suits against Rex and herself. This action was commenced in the Clark Circuit Court and consolidated with the others.

Subsequent to Bertie's suit claiming the lien, one of the original plaintiffs, E. Linkous (who had obtained a personal judgment against Rex), filed a suit against Rex, Bertie and Inez in which he, as plaintiffs Stamper and Moore had done in their first suit, sought a general attachment against the property belonging to Rex and asked to have the deed to Inez set aside as fraudulent. This action was also filed in the Clark Circuit Court and consolidated with the above actions.

Earlier judgments not before us have settled the tort liability of Rex to the five original plaintiffs. The judgment appealed from did the following: (1) sustained the attachments and garnishments in each of the actions filed by Stamper, Moore and Linkous; (2) set aside the deeds from Rex and Bertie to Inez as fraudulent, and ordered the property sold to satisfy the judgments: and (3) adjudged costs against Inez in the two original actions of Stamper and Moore (which involved the question of liability and damages as well as the alleged fraudulent conveyance to Inez) and other costs against Bertie and Inez in the consolidated actions.

We will first consider the appeal of Bertie. She claims that her unrecorded mortgage lien is superior to the attachment liens of Stamper, Moore and Linkous because at the time they became judgment creditors and their attachments were sustained they had notice of her mortgage. The trial court did not pass upon the question of priority because he found as a matter of law that she could not assert her mortgage claim against these plaintiffs. The basis of this ruling was two-fold: (1) Bertie's disclaimer of any interest in this property by answer in each of the original suits filed by these three plaintiffs constituted a judicial admission as to these parties that she had no claim adverse to theirs, and (2) if her claim was to be effective against the original plaintiffs in the suits to which she was a party, she was required to set up her lien as a compulsory counterclaim in those suits under CR 13.01. Since we believe the first ground is controlling, we need not consider the second.

Judicial admissions have been defined as: 'concessions or voluntary acknowledgments made by a party of the existence of certain facts'. 31 C.J.S. Evidence § 270, p. 1022. An admission in a pleading is a judicial admission. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172. In Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024, we stated:

'* * * a judicial admission is conclusive, in that it removes the proposition in question from the field of disputed issue, and may be defined to be a formal act done in the course of judicial proceedings which waives or dispenses with the necessity of producing evidence by the opponent and bars the party himself from disputing it; * * *.'

In the original actions brought by Stamper and Moore plaintiffs alleged that Bertie was one of the joint owners of a tract of land located in Campton, Wolfe County, Kentucky. They also alleged that Rex and Bertie were owners of other real estate in Wolfe County. By answer in both of these actions Bertie stated specifically that she had no interest in the Campton property, and she admitted joining in the conveyance of all Rex's property to Inez. Each answer, taken as a whole, constituted a judicial admission that she had no claim to this property.

The contention is made by Bertie, however, that such a disclaimer is not binding upon her in the subsequent suit she brought in which she set up her mortgage lien. As a general rule a judicial admission in one action is not conclusive in another action. Miller v. Poffinger, 1 Ky.Op....