Connor v. Home & Savings Fund Co. Bldg. Ass'n

• Decision Date: 12 May 1904
• Citation: 80 S.W. 797
• Parties: CONNOR v. HOME & SAVINGS FUND CO. BLDG. ASS'N.
• Court: Kentucky Court of Appeals

80 S.W. 797

CONNOR v. HOME & SAVINGS FUND CO. BLDG. ASS'N.

Court of Appeals of Kentucky.

May 12, 1904

Appeal from Jefferson Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Proceedings for the foreclosure of a mortgage on real estate between the Home & Savings Fund Company Building Association and J. W Connor. From an order overruling exceptions to the commissioner's report and confirming the report of sale Connor appeals. Affirmed.

E. L McDonald, for appellant.

John L. Jackman, for appellee.

NUNN J.

This is an appeal from an order of court overruling exceptions to the commissioner's report and confirming the report of a sale of a house and lot in the city of Louisville, Ky. The appellant presents only two exceptions upon which he asks for a reversal. The first is that he cannot acquire a good title to the property on the ground that the legal title thereto is still outstanding in one J. M. Bryant, or his trustee, because no deed was made to the purchaser under a judicial sale made more than 25 years since, in a suit instituted by Bryant's trustee to settle his estate. The agreed facts are that in the year 1876 Henry D. Pope, as trustee of J. M. Bryant, filed an action in the Louisville chancery court against J. M. Bryant and his creditors to settle his estate, and to enforce a mortgage lien on various lots in Bryant's subdivision. The lots were sold by order of court, and H. D. Pope became the purchaser; one of the lots being the one in controversy. The sale was confirmed May 26, 1876. On April 27, 1877, nearly a year thereafter, an order was entered suggesting the death of H. D. Pope, and directing the deed to be made to his widow and children, according to their respective interests. No deed was made pursuant to this order. Prior to this order the administrator of H. D. Pope instituted an action in the same court, making his widow and children and creditors defendants, and upon the answer, counterclaim, and cross-petition of George B. Eastin, trustee of Minor S. Pope, it was adjudged that Eastin, as such trustee, was entitled to half of these lots purchased by H. D. Pope, and commissioners were appointed to make a division. The report of the commissioners was confirmed April 16, 1881, the lot now in question being one of the lots allotted to Eastin, trustee of Minor S. Pope. Afterwards Eastin filed the amended and supplemental answer and cross-petition, to which J. M. Bryant and W. O. Dodd, his assignee in bankruptcy, were also made defendants, in which he alleged the fact that no deed had been made in the former action to the property purchased by H. D. Pope, and on the 13th day of June, 1881, the court in that action made an order divesting Bryant and Dodd of all interest in this property; also divesting the widow and children of H. D. Pope of all interest therein; and confirmed the title in Eastin as trustee of Minor S. Pope. Subsequently Eastin, as trustee, brought an action in the same court against Thomas P. Jacobs, administrator of Minor S. Pope, and his heirs and creditors, for the purpose of settling the accounts of the trustee and the estate of the decedent, in which all the facts were set forth contained in the supplemental answer and cross-petition and the judgment thereon referred to. In this last action a judgment was entered July 10, 1890, ordering a sale of all the property allotted to Eastin, trustee, and at the sale thereof W. E. Young became the purchaser of the lot now in question, which sale was confirmed November 3, 1890, and a deed was made to him. He afterwards conveyed this lot to Mrs. Irvine, the mother of the infant defendants herein.

We are of the opinion, under the facts of this case, that Bryant, Dodd, and the widow of H. D. Pope and his children were, by the action of the court, divested of all title and interest they had in this property. The case of Gill v. Hewitt, 7 Bush, 10, is not like this case. In that case there were no steps taken by supplemental proceedings or otherwise to perfect the title. In the case of Jones v. Bigstaff, 95 Ky. 395, 25 S.W. 889, 44 Am. St. Rep. 245, it was held that, where the report of division had been confirmed, but no deeds were made, the parties having gone into possession of their portions, the division was regarded as effective as if the grant had been expressly made.

Appellant's second exception is, in substance, that the court, under the facts of this case, had no jurisdiction to render a judgment ordering a sale of the property of the infant defendants. The facts are,...