Grooms v. Grooms

• Decision Date: 11 May 1928
• Parties: GROOMS et al. v. GROOMS et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 863

225 Ky. 228

GROOMS et al. v. GROOMS et al.

Court of Appeals of Kentucky

May 11, 1928

Appeal from Circuit Court, Greenup County.

Action by Clifford Grooms and another, infants, by their next friend, Stella Morrow, against Alice Grooms and others. From part of the judgment for defendants, plaintiffs appeal, and defendant named cross-appeals. Reversed on both appeal and cross-appeal, with direction to enter judgment in conformity with opinion.

James B. Adamson, of Ashland, for appellants.

H. O Williams and E. H. King, both of Ashland, for appellees.

REES J.

This is an action under the Declaratory Judgment Act, section 639a1 et seq., Civil Code.

C. B Grooms died intestate in the year 1916, the owner of a house and lot located in the town of Russell, Ky. He left surviving him two children, the appellants, Clifford Grooms and Virginia Grooms and his wife, the appellee Alice Grooms. At the time of his death, the children were three and four years of age, respectively. His widow, Alice Grooms, qualified as administratrix of his estate, and on June 29, 1917, filed an action in equity in the Greenup circuit court to sell the house and lot to pay the debts of her decedent. The house was a five-room cottage, and the property was of the value of $3,000, and Henry A. Williams held two mortgages against the property amounting to $1,000. C. B. Grooms left no personal property.

In the suit to settle the estate of C. B. Grooms, the two children and the mortgagee, Henry A. Williams, were made defendants but no summons was served on any of them. The mortgagee, Henry A. Williams, however, filed an answer, counterclaim, and cross-petition in the action, in which he set up decedent's indebtedness to him, and asked that he be adjudged a lien on the real estate, and that it be sold to satisfy his debt. Alice Grooms and the two infant children were made defendants in the counterclaim and cross-petition, it being alleged as to the infant defendants that they had no guardian, curator, or committee. Summons was issued for all of the defendants on this pleading, and a guardian ad litem for the infant defendants was appointed by the clerk, and summons was served on them by delivering a copy thereof to their guardian ad litem. The action proceeded as one between Henry A. Williams and the defendants in the counterclaim and cross-petition. No further appointment of a guardian ad litem was made, but the one appointed for service continued to act, was present at the taking of proof, and filed his report before the case was submitted for judgment.

Henry A. Williams was adjudged a lien on the real property, and it was directed to be sold by the master commissioner. At the sale held on December 3, 1917, the property was purchased by Alice Grooms, the administratrix of the estate, and the mother of the infant defendants, for the sum of $1,550, it having been appraised at $3,000. She executed a sale bond, the master commissioner filed a report of the sale, which was confirmed, and, after the purchase money had been paid, a deed was executed by the commissioner to Alice Grooms, which was examined and approved by the court on July 11, 1918. No bond was executed to the infants for their interest in the surplus proceeds of the sale until after the institution of the present action; Alice Grooms having qualified as their guardian on September 18, 1918.

On May 4, 1923, Alice Grooms executed a mortgage on the property to the appellee J. R. Simpson to secure the payment of $3,500 she had borrowed from him. She applied this $3,500 to the payment of the purchase price for the property and to improvements thereon. On April 18, 1925, she conveyed to the appellee F. U. Simpson, for $2,500, a portion of the lot and this $2,500 was applied to improvements on the remainder of the property still owned by her. Upon the portion of the lot so conveyed to him, the appellee, F. U. Simpson, constructed a two-story brick apartment building at a cost of $10,000. Having made application for a loan to be secured by a mortgage upon the property, it was discovered for the first time that the title thereto was questionable; hence this proceeding instituted by the infant children by their next friend against Alice Grooms, F. U. Simpson, and J. R. Simpson, in which they ask that they be declared the owners of all of the real estate owned by their father, C. B. Grooms, at the time of his death, and that the judgment and order of sale in the action of Alice Grooms, Administratrix, v. Clifford Grooms, Virginia Grooms, and Henry A. Williams, be declared null and void, and that the deed from the commissioner to Alice Grooms and the mortgage from her to J. R. Simpson and the deed from her to F. U. Simpson be declared void and canceled.

On a final hearing the lower court adjudged that plaintiffs, Clifford Grooms and Virginia Grooms, are the owners of the real estate in question, except that portion thereof conveyed by Alice Grooms to F. U. Simpson, of which the latter was adjudged to be the owner. The appellee J. R. Simpson was adjudged a prior and superior lien upon all the property for the sum of $1,800, being the balance due on the mortgage executed to him by Alice Grooms, and Alice Grooms was adjudged a lien upon the real estate for the sum of $5,152. The court arrived at this sum as follows: The amount of the liens against the property paid by Alice Grooms and the increase in the value of the property because of the improvements placed thereon by her in all amounted to $9,452, and from this was deducted the sum of $2,500 paid to her by F. U. Simpson and the sum of $1,800 adjudged as a lien to J. R. Simpson.

The infant plaintiffs excepted to so much of the judgment as adjudged F. U. Simpson title to that portion of the lot conveyed to him by Alice Grooms and as adjudged J. R. Simpson the lien for $1,800 and Alice Grooms a lien for $5,152, and have appealed. Alice Grooms has prayed, and been granted, a cross-appeal.

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