Fitzpatrick v. Costigan
| Citation | 230 Ky. 365 |
| Court | United States State Supreme Court (Kentucky) |
| Decision Date | 21 June 1929 |
| Parties | Fitzpatrick et al. v. Costigan et al. |
2. Appeal and Error. — Defendant owners, in action by lienholders to have property of defendants sold to satisfy liens thereon, cannot complain on appeal of judgment rendered in favor of lienholder not made party to appeal.
3. Judgment. — In action by lienholders to enforce liens on land against owners and other lienholders, who answered and cross-petitioned, plaintiffs and cross-petitioners were entitled to judgments, whether defendant lienholders answered or not; it being unnecessary for lienholder made a defendant to answer, in order to entitle plaintiff to have land sold to satisfy liens on it.
4. Liens. — Where certain lienholders, named as defendants with owners of land in action by other lienholders to enforce liens, filed their answers, asserted their liens, and prayed that their answers be made cross-petitions against owners of land, they thereby assumed role of plaintiffs, and were as fully authorized to carry on action to conclusion, after original plaintiffs abandoned it, as if they had been original plaintiffs.
5. Statutes. — Act entitled "An Act to amend section No. 694 of Civil Code of Practice" (Acts 1916, c. 105), empowering holder of prior lien to enforce liens, held not violative of Constitution, sec. 51, the title being sufficient, since it clearly indicates proposed amendment of section, of which all subsections are parts; word "amend" meaning to change or alter, to improve or better, to correct, to supply deficiency.
6. Liens. — In action by lienholders against owners of property and other lienholders to enforce liens, court had right to order property sold under Civil Code of Practice, sec. 694, subd. 3, providing that holder of prior lien may enforce it when debt thereby secured is due, notwithstanding existence of inferior liens, whether debts secured are due or not, and that holder of inferior lien, when debt thereby secured is due, may enforce it by sale of land subject to prior lien or liens thereon, where debts secured are not yet due, where that condition existed.
7. Liens. — In action to have liens on land enforced, court properly directed them to be sold as entireties, and not divided, as provided by Civil Code of Practcie, sec. 694, subd. 1, where allegations that tracts could not be divided without depreciation in their value were undenied, unqualified, and undisputed.
8. Liens. — In action by lienholders against owners of land and other lienholders to enforce liens, in which action certain defendant lienholders became cross-petitioners, court did not err in ordering tract sold as a whole, which, had it been divided, as provided for by Civil Code of Practice, sec. 694, subd. 1, into five equal parts, could not have as readily been sold, since, if divided, prospective purchasers would have hesitated purchasing because of other liens on property.
9. Liens. — Where tract of land appraised at $12,000 was sold for $8,200 to satisfy lien, owner valued property at $20,000, testimony of 11 witnesses was heard before sale was confirmed, and it developed that owner had paid only $9,600 for it in 1925, and that, though building once constructed thereon, which cost $30,000, had been idle and vacant for years, court did not err in confirming sale.
10. Liens. — Where court confirmed sale of tract of land appraised at $9,0000 for $4,350 to satisfy lien, which was less than two-thirds of its appraised value, court did not thereby err, since, if owners felt themselves aggrieved, they had ample remedy under Ky. Stats., sec. 1684, to protect themselves by redeeming property.
11. Appeal and Error. — Court of Appeals will accept finding of chancellor confirming sale of tract of land appraised at $750 for $515 to satisfy lien, where testimony is in confusion.
12. Liens. — Court did not err in confirming sale of property appraised at $4,500 for $3,225, though owner testified it was worth $7,000 or $8,000, where three witnesses testified and fixed average value at $3,900.
13. Appeal and Error. — As owners of land sold to satisfy liens do not complain of prices for which certain tract was sold, court will assume that sale thereof was satisfactory to owners.
14. Liens. — Fact that lienholders constituted almost entirely bidders at sale of property to satisfy liens, and that lienholders had previously entered into arrangements together regarding tracts to be sold and what they would bid thereon, held not to invalidate sale thereof below values fixed by owners.
Appeal from Montgomery Circuit Court.
FOWLER, WALLACE & FOWLER for appellants.
ROBT. H. WINN, W.B. WHITE, ROY G. KERN, HENRY WATSON, W.C. HAMILTON and GRUBBS & GRUBBS for appellees.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Affirming.
Thomas W. Fitzpatrick, his wife, Susie M. Fitzpatrick, and S.P. Greenwade have appealed from a judgment ordering their property sold to satisfy liens thereon, and from an order confirming the sales made thereunder. This action was begun by John Costigan and 12 other lien creditors of the appellants to enforce liens they had on the property of the appellants. The appellants and 14 of their lienholders other than the plaintiffs were made defendants. Appellants were heavily indebted. With commendable diligence, they endeavored to pay and did pay many of these complaining creditors, so that John Costigan and many of his associates have been paid in full, and now serve no purpose here, other than to lend their names to the style of this appeal.
Their first attack is upon the judgment, which they allowed to go against them by default. They say that personal judgment was taken by many of the defendants upon their answers and cross-petitions without the appellants having been served with process thereon. The defendants and cross-petitioners who took personal judgments and the circumstances under which they took them are: on May 19, 1926, W.C. Clay filed his amended answer, which by order of the court was made a cross-petition against the defendants, now the appellants, and process was awarded thereon. This was served on Thomas W. Fitzpatrick and Susie M. Fitzpatrick on June 9, 1926, and upon S.P. Greenwade on June 23, 1926. Sally G. McCormick took similar steps and was awarded similar orders on May 24, 1926. The process issued in her behalf was served on Thomas W. Fitzpatrick and Susie M. Fitzpatrick on June 9, 1926. She took judgment against Thomas W. Fitzpatrick only, and that has since been paid. A like step was taken by Laura Gibbons on May 18, 1926, and the process awarded her was served on Thomas W. Fitzpatrick on June 9, 1926, and he was the only one against whom she took a personal judgment. The Traders' National Bank took such a step on May 24, 1926, and the process awarded it was served on Thomas W. Fitzpatrick and Susie M. Fitzpatrick on June 9, and upon S.P. Greenwade on June 15. These were the only personal judgments taken. They were taken on May 28, 1927, and at that time these parties were before the court, so that disposes of the first contention.
Their next complaint is that liens were adjudged to the Mt. Sterling National Bank, the city of Mt. Sterling, T.C. Lyons, Charles P. Humphries, Nellie Greenwade, Ella R. Thomas, and Laura Gibbons upon the properties of appellants before appellants had been served with process or entered their appearance to these claims, and without these lienholders having been required to plead to the petition, and without their having done so. As to Ella R. Thomas, the lien adjudged her was adjudged to be for the use and benefit of Betty Fitzpatrick, Ella R. Thomas having on December 11, 1925, assigned to Betty Fitzpatrick the benefit of an execution Ella R. Thomas then had in the hands of the sheriff of Montgomery county. Betty Fitzpatrick was the equitable owner of this execution, and she had been made a defendant when the petition was filed. Appellants cannot complain here of any judgment rendered in favor of the Mt. Sterling National Bank, as they have not made it a party to this appeal. The others to whom liens were adjudged, and of which the appellants have complained, had filed their pleadings and asserted their liens upon the following dates: Nellie Greenwade, city of Mt. Sterling, Laura Gibbons and Charles Humphries, on May 18, 1926; T.C. Lyons, on May 27, 1927; and Betty Fitzpatrick, on November 29, 1926. In this answer, she asserted the Ella R. Thomas execution. Thus it appears that appellants were simply mistaken about the condition of the record. Plaintiffs and cross-petitioners were entitled to judgments, however, whether these defendant lienholders answered or not. See McKibben v. Worthington, 103 Ky. 356, 45 S.W. 233, 20 Ky. Law Rep. 61. This disposes of the second complaint.
As we have said, the appellants worked hard to pay off their debts. This suit was begun by a number of junior lienholders, and of these they had paid all, except two, and seem to have satisfied those two; hence they may have felt that they were in no further danger, and as this judgment was entered at the instance and request of parties who had originally been sued as defendants, appellants question it, and contend they had no right to the judgments entered; but they overlook the fact that these parties who had originally been made defendants, had filed their answers, asserted their liens, and prayed that their answers be made cross-petitions against appellants, for process thereon, and appellants were brought before the court on...
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Barnett v. Howard
...by the court prejudicial to the rights of the holders of any of the liens." To such effect, in the case of Fitzpatrick et al. v. Costigan et al., 230 Ky. 365, 19 S.W. (2d) 983, it was held that where lienholders, named as defendants with owners of land in action by other lienholders to enfo......