Hanna v. Spotts' Heirs

• Decision Date: 30 April 1845
• Citation: 44 Ky. 362
• Parties: Hanna v. Spotts' Heirs.
• Court: Kentucky Court of Appeals

44 Ky. 362

Hanna v. Spotts' Heirs.

Court of Appeals of Kentucky.

April 30, 1845

Bills of review. Guardian. Trustees. Infants. Decrees

ERROR TO THE HANCOCK CIRCUIT.

Cates & Lindsey, Monroe and Crittenden for plaintiff.

Harlan & Craddock, Morehead & Reed, and Hardin for defendants.

OPINION

EWING CHIEF JUSTICE.

The case stated.

HANNA filed his bill in the Hancock Circuit Court, against the administrator and infant heirs of Samuel Spotts, deceased setting up a demand on two notes, one for $484, with interest from the 16th November, 1832, which he charges had been assigned to him by Edward Colston; the other for $1,800, with interest from the 23rd July, 1833, which he claims to have been assigned to him by Wm. G. Hawes. Both of these notes he alleges were executed by said Spotts, in his lifetime, and the former for the last installment due upon a contract for the purchase of a tract of land from the executor of Colston, the assignor, and prays that the tract of land might be sold, also another tract of land purchased by Spotts of Maupin's executor, to satisfy the two demands, interest, & c. Process was served on the administrator and three of the infant heirs, and publication made against the fourth as a non-resident. Copies of the notes and assignments were exhibited, also a Copy of the contract with Colston's executor, and the originals of either were never produced or filed, though promised, if necessary. The administrator living in a distant county, entered his appearance, but never answered, and a formal answer for the infants, filed by the Clerk of the Court without being sworn to, he being appointed guardian ad litem, on the motion of the complainant. On the first day of the October term, 1836, an interlocutory decree was rendered, requiring the administrator and infants of Samuel Spotts, deceased, to pay to the complainant the demands aforesaid, with interest and costs, on or before the second day of the same term, and on the third day of the term, upon their failing to pay, a final decree was rendered, without giving the infants day after they arrived at age, to open the decree or controvert its validity, directing the sale of the two tracts of land to satisfy the same. A sale was made by a Commissioner, who was appointed for the purpose, and Hanna became the purchaser of both tracts, the one upon which the lien was claimed for $1,750, the other for $352, the two amounts being less than the amount decreed him, and a deed was made to him by the Commissioner, as was directed by the decree.

At the October term, 1841, Harry I. Spotts, one of the infants, having arrived at age, appeared in Court, and in conjunction with his infant brothers and sisters, for whom he appeared as next friend, exhibited a petition with an answer, which they made a cross bill, praying that they may file the same and that the decree might be opened and set aside for causes of error assigned on the face of the record, as well as for other causes of fraud and breaches of implied trust, extraneous the record, which they charge in the proceedings, decree, sale and purchase by Hanna. By the leave of the Court, the answer was filed and cause reinstated on the docket. At a subsequent term, to-wit: at the April term, 1843, the heirs of Spotts appeared, and by leave of the Court, filed an amendment to their cross bill, which made the petition and former answer and cross bill parts thereof, and prayed that said decree might be reversed and set aside for the errors assigned in the petition and answer, or in case that cannot be done consistently with the rights of others, to whom it was alleged Hanna had sold and conveyed immediately after his purchase, for a large amount over and above the amount bid, and greatly exceeding the amount of the whole demand claimed by him, that the sale be permitted to stand, and a decree rendered against Hanna for the excess of the proceeds of sale, with inter est, as trustee.

Petition or Spotts' heirs and answer.

Process was served on Hanna in Franklin, and he failing to answer, the bill was taken for confessed, and a decree rendered, against him, in favor of each of the heirs for $1,688 38 cents. From this decree Hanna has prosecuted a writ of error to this Court.

Decree of Circuit Court on bill of review of Spotts' heirs.

The proceedings in this case, to attain the object intended, are exceedingly informal and irregular. But waiving the question whether a non-resident infant may not have the right to open a decree against him at any time within seven years, notwithstanding a formal answer had been put in by a guardian ad litem, appointed at the instance of a complainant, we are satisfied that the amendment filed by the heirs of Spotts, at the April term, 1843, taking the petition and former answer, with all their allegations and assignment of errors as parts thereof, is not only sufficient to be sustained as a bill of review for errors apparent on the record, but also a bill in the nature of a bill of review for fraud in the proceedings, decree, and sale.

I. It possesses all the essential characteristics of a bill of review, for errors apparent on the face of the record. It prays that the decree may be reviewed and set aside for the errors assigned, the most of which are errors apparent on the record, and is prosecuted as an original, by the service of process on the complainant in that decree.

Several of the errors assigned are also sufficient to authorize the review and reversal of the decree.

1st. No time is allowed to the infants to show cause against the decree after they attain full age.

Decrees against infants should give day for opening the decree after their arrival at full age.

It is error to take a bill for confessed against infants, or to decree against them upon filing copies only of the bonds of their ancestors.

2nd. The infants or their guardian, cannot be presumed to know any thing about the notes, which are claimed to have been executed by their ancestor, nor of their assignment to the complainant, nor of the genuineness of either, and copies only were exhibited, it was, therefore, erroneous to take the bill for confessed against the infants as to those matters upon the exhibition of copies only; no?? should a decree have been rendered against them at all, without requiring the production of the originals.

3rd. The right to proceed against lands of the non-resident infants for the demand claimed on the note for...