Dodd v. Scott

• Decision Date: 10 November 1911
• Citation: 140 S.W. 528,145 Ky. 310
• Parties: DODD v. SCOTT et al.
• Court: Kentucky Court of Appeals

140 S.W. 528

145 Ky. 310

DODD v. SCOTT et al.

Court of Appeals of Kentucky.

November 10, 1911

Appeal from Circuit Court, Fayette County.

Action by Joseph M. Scott and others against Lida F. Wilson, for the sale of certain real estate. From an order confirming the commissioner's report of sale to W. J. Dodd, he appeals. Affirmed.

Rives &amp Shannon, for appellant.

Geo. S Shanklin, for appellee.

SETTLE J.

This appeal brings to us for review a judgment of the Fayette circuit court, overruling certain exceptions filed by appellant to the commissioner's report of sale of a lot in the city of Lexington under a decree of that court, of which property appellant became the purchaser.

Although twelve exceptions were filed by appellant, only three of them are relied on for a reversal; and these will be considered in the order presented.

The real estate in question was conveyed by deed of September 27 1906, from G. A. De Long and wife to D. F. Frazee and John McClintock, trustees. Simultaneously with the execution of this deed, the grantors and grantees entered into a writing whereby it was agreed between them that the grantees should hold in trust the title to the lot conveyed by the deed, sell and convey the lot, and divide its proceeds among the following persons in the proportions here indicated: D. F. Frazee, $1,366.67; John McClintock, $500; Joseph M. Scott, $333.33; and G. A. De Long, $100. The writing further provided that if the lot should sell for more money than would pay each of the persons named the amount he was entitled to receive, and whatever taxes might be owing on the property, the remainder should be paid to G. A. De Long.

It will be observed from the foregoing writing that the trust imposed by the deed was nothing more than a naked power to the grantees to hold the title, sell, and convey the property, and apply the proceeds as by the writing directed, without fixing the time of sale. No sale of it was made by the trustees, and one of them, D. F. Frazee, died in February, 1909, testate. His will was thereafter admitted to probate, and Tucie Frazee, his wife, appointed executrix by the will, duly qualified in that capacity. G. A. De Long also died in 1910, testate, and his will was likewise admitted to probate. The will made his wife, Ida Custis De Long, sole devisee and the executrix thereof, and her qualification as such immediately followed the probating of the will. As the lot conveyed by the deed of trust from De Long and wife to Frazee and McClintock was indivisible and its sale necessary, in order to make division of its proceeds among the cestuis que trust, as required by the simultaneously executed writing expressing the trust, John McClintock, surviving trustee under the deed, Joseph M. Scott, Tucie Frazee, as executrix of and devisee under the will of D. F. Frazee, deceased, and Ida Custis De Long, executrix of and sole devisee under the will of G. A. De Long, deceased (the parties named being the persons among whom the proceeds of the lot are to be divided) brought this action under section 490, subsec. 2, Civil Code, to obtain a decree for the sale of the lot described in the deed of trust and for a division of the proceeds, as provided by the writing manifesting the trust created by the deed.

Lydia F. Wilson, Bettie Asbury, and Anna Humlong, nieces of D. F. Frazee and devisees in remainder under his will, together with their husbands, respectively, C. B. Wilson, Charles T. Asbury, and D. Y. Humlong, were made defendants and duly summoned in the action. The defendants did not resist the right of the plaintiffs to a sale of the lot or file exceptions to the report of sale; the only complaint thereof came from appellant, purchaser at the sale, whose exceptions we will now consider.

It is insisted for him that the wife of John McClintock, one of the trustees named in the deed of trust from De Long and wife, and also a beneficiary of the trust, was a necessary party to the action, and as she was not made a party the judgment for the sale of the property was void. In answer to this complaint, we think it sufficient to say that it is unnecessary to determine whether Mrs. McClintock should have been made a party to the action, as this defect in the proceedings was cured by her conveying, in conjunction with her husband, to appellant whatever interest she had in the lot; the deed having been executed, properly acknowledged, and tendered in open court for delivery to appellant after the confirmation by the court of the report of sale.

The validity of the sale was not affected by the action of the court in allowing 30 days for the execution and delivery of this deed, or in confirming the sale before the execution and tender of the deed. It would have been more regular to have delayed the...