Gilliam v. Cassady

• Decision Date: 28 April 1942
• Parties: GILLIAM et al. v. CASSADY et al.
• Court: Kentucky Court of Appeals

161 S.W.2d 915

290 Ky. 477

GILLIAM et al. v. CASSADY et al.

Court of Appeals of Kentucky

April 28, 1942

Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.

Action by Victoria Cassady against Maude Gilliam and husband to foreclose a mortgage, in which defendants filed a counterclaim and cross-petition against Myrtle Cassady and others for equalization of named defendant with other heirs of J. W. Cassady, deceased, and subrogation of defendant husband to plaintiff's rights under the mortgage. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Steele & Vanover, of Pikeville, for appellants.

Andrew E. Auxier and Henry J. Scott, both of Pikeville, for appellees.

CAMMACK Justice.

Several years prior to 1926, J. W. Cassady, who died in September 1936, and a son-in-law of his, C. E. Gilliam, jointly purchased a piece of property in Pikeville. They made the first payment jointly and assumed the payment of two $525 notes which were secured by a lien on the property. In February, 1926, Cassady borrowed $1,000 from his wife Victoria, the plaintiff below and one of the appellees here and gave her a note for that amount and a mortgage on his one-half interest in the property to secure its payment. Cassady and his wife were not living together at the time he borrowed the money and they were divorced at the time of his death. He made two payments on the $1,000 note, the last in 1929. In July, 1936, he deeded his one-half undivided interest in the property to his daughter, Maude Gilliam, wife of C. E., as her part of his estate. Following Cassady's death, Mrs. Cassady tried to get Mrs. Gilliam to agree not to claim any part of her estate, and upon being advised that Maude refused to so agree, she said she would have to assert her rights under the mortgage.

This action was instituted in 1938 by Victoria Cassady to accomplish that end. Maude Gilliam and her husband filed a joint and separate answer and counterclaim and cross petition against Myrtle Cassady, Lizzie Cassady Thompson, Ben Cassady and Clara Cassady, administratrix of the estate of Mack Cassady, deceased. Mrs. Gilliam asserted that her father had warranted the title of the property conveyed to her and that the parties, other than Victoria Cassady, referred to in the cross petition, had received property from their father, J W. Cassady, in excess of the value of the interest conveyed to her, and asked, in the event the mortgage be adjudged prior to her claim, that she be equalized with the other heirs. Upon the motion of Ben Cassady and Clara Cassady, administratrix of the estate of Mack Cassady, the cross petition was stricken from the record over the objection of the Gilliams. C. E. Gilliam asserted that there was a vendor's lien retained when he and J. W. Cassady purchased the property which was of record, and the deed made to them was made a part of the description in Cassady's mortgage, and therefore he was entitled to be subrogated since he had paid his half of the lien, as well as that of J. W. Cassady.

Further pleadings were filed by both parties. After the issues were joined, proof was taken and the trial resulted in favor of Victoria Cassady, thereby disallowing the claim of C. E. Gilliam that he was entitled to a prior claim and interest in J. W. Cassady's interest in the property by reason of payment of the deferred purchase money. The judgment provided that, if any surplus remained after the paying of Victoria Cassady's claim, such surplus should be paid to Maude Gilliam.

The Gilliams are urging reversal upon the grounds that (1) since it is the policy of the law to avoid a multiplicity of actions, the court should have given all of the relief to all the parties in one suit, and therefore should not have stricken their cross petition, especially, since Myrtle Cassady and Lizzie Cassady Thompson made no defense; and (2) the purchase of the property was a business venture in the nature of a partnership between J. W. Cassady and C. E. Gilliam, and the latter was entitled to the settlement of the partnership before Victoria Cassady could assert her mortgage.

It is the policy of the law to avoid a multiplicity of actions, but it is provided in ...