Farnsworth v. Barret

• Citation: 142 S.W. 1049,146 Ky. 556
• Parties: FARNSWORTH et al. v. BARRET et al.
• Decision Date: 02 February 1912
• Court: Court of Appeals of Kentucky

142 S.W. 1049

146 Ky. 556

FARNSWORTH et al. v. BARRET et al.

Court of Appeals of Kentucky.

February 2, 1912

Appeal from Circuit Court, Henderson County.

Action by J. R. Barret and others against the Keystone Mining &amp Manufacturing Company, in which Nancy J. Nicholson, R. P Farnsworth, and others were made parties, and filed a cross-petition. From a judgment for plaintiffs and dismissing the cross-petition, the cross-petitioners appeal. Affirmed.

Dorsey & Stanley, for appellants.

Yeaman & Yeaman and Montgomery Merritt, for appellees.

MILLER J.

This is a controversy concerning the coal and mining rights under 40 acres of land near Henderson. The appellant Nancy Nicholson is the owner of the land, and claims to be the owner of the coal and mining rights thereunder, while the appellees also claim to own the coal and mining rights. The controversy arises in this way: In 1906, the appellees, James R. Barret and others, sold the coal and mining rights in controversy to the Keystone Mining & Manufacturing Company, and retained a vendor's lien for the unpaid purchase money; and, the company having failed to pay the purchase money, appellees brought this suit on December 26, 1907, to enforce their lien. In its answer the company alleged that the appellants Nancy J. Nicholson, J. L. Nicholson, and R. P. Farnsworth were claiming to be the owners of said coal and mining rights, and it made its answer a cross-petition against them. Appellants answered, and set up their claim of ownership to the coal and mining rights under the 40 acres in controversy. Appellants and appellees alike claim title through David Banks as their common grantor. In 1854 D. R. Burbank, A. B Barret, John G. Holloway, David Banks, and others organized the Henderson Coal Company, and on July 28, 1854, Banks conveyed to the Henderson Coal Company the coal and mining rights under the land in controversy as his contribution to the capital stock of the company. After sinking a shaft and incurring quite a large indebtedness, chiefly to Burbank, Barret, and Holloway, the Henderson Coal Company was put into liquidation, and in 1857 Burbank, Barret, and Holloway brought a suit in the Henderson circuit court to enforce the collection of the company's indebtedness to them. This suit was styled David R. Burbank and Others v. F. Cunningham and Others. To this suit Banks and the other stockholders were made defendants. In organizing the corporation Burbank, Barret, and Holloway had furnished most of the capital, while Banks and the other incorporators put in the mineral rights under their lands, for which they received stock in the corporation. Burbank, Barret, and Holloway sought to make the stockholders personally contribute to the payment of this indebtedness in proportion to the amount of stock severally subscribed for by them. Banks and the other defendants filed their answer, in which they successfully claimed that they had conveyed to the company the coal and mining privileges under their lands in satisfaction and in discharge of their liability as subscribers of stock; that said mining privileges had been accepted by the company in satisfaction of their subscription, and that they were not therefore personally liable. In 1858 a judgment was entered, fixing the claims of the plaintiffs against the company, which also provided that the defendant stockholders should have the privilege of paying their pro rata of the indebtedness of said company, and thereby prevent the sale of the coal and mining privileges that they had conveyed to the company; but, in case the indebtedness should not be paid, the mining rights owned by the company should be sold for that purpose. This judgment was not executed; on the contrary, the case having dragged along on the docket without any attempt to enforce the judgment, it was in September, 1867, on motion of plaintiffs' attorneys, stricken from the docket. It so remained until March, 1869, when it was, upon the motion of Holloway, one of the plaintiffs, and, without notice to any of the defendants, reinstated upon the docket. In the meantime, Barret, Burbank, and Holloway had died, and the action proceeded in the name of their personal representatives; and by an order entered in March, 1872, the judgment of 1858 was revived in the name of the executors of Burbank, Barret, and Holloway, and a sale of the company's coal rights was made thereunder, the plaintiffs becoming the purchasers. At the March term, 1873, Lambert and other defendants moved to set aside the sale because the judgment of 1858, under which the sale was made, had been revived without notice to any of the defendants after the case had been stricken from the docket. The circuit court sustained that motion, and set aside the sale, and, upon an appeal to the Court of Appeals by the executors of Burbank, Barret, and Holloway, the judgment of the circuit court was affirmed in 1873.

The Court of Appeals having declared that the revivor proceedings in 1872 were null and void for want of notice to the defendants of the reinstatement of the action in March, 1869 the personal representatives of Burbank, Barret, and Holloway abandoned the original action, and subsequently, in 1873, filed a new action in the Henderson circuit court against Sarah Cunningham, the widow and heir of F. Cunningham, who had died in the meantime, and against the other defendants, seeking to revive the original judgment of 1858. That suit is known as Barret's Adm'r, etc., v. Sarah Cunningham, etc., to distinguish it from the original suit of A. B. Barret, etc., v. F. Cunningham, etc. To this second action all of the original subscribers to the capital stock of the Henderson Coal Company or their representatives were made parties, and a judgment of revivor was entered in 1876, directing the sale of the mining privileges as originally ordered under the judgment of 1858. From this judgment all of the defendants, except Soper, prayed an appeal to the Court of Appeals, but none of them prosecuted the appeal. In pursuance of said judgment of 1876, the coal and mining privileges under the Banks land were sold and bought by the plaintiffs in the action, the personal representatives of Burbank, Barret, and Holloway on December 16, 1878. They subsequently sold to the Keystone Mining & Manufacturing Company, the present owner, and defendant in this action. In the meantime, in 1860, David Banks had conveyed the land which contained the coal and mining rights he had...