Harding v. Bullard

• Decision Date: 24 November 1916
• Parties: HARDING v. BULLARD.
• Court: Kentucky Court of Appeals

189 S.W. 242

172 Ky. 416

HARDING v. BULLARD.

Court of Appeals of Kentucky.

November 24, 1916

Appeal from Circuit Court, Campbell County.

Action by Thomas P. Bullard, executor of the will of Jessie Russ Harding, deceased, against R. H. Harding. Judgment for plaintiff, and defendant appeals. Affirmed.

A. C Hall, of Newport, for appellant.

Hall &amp Adams, of Covington, for appellee.

SETTLE J.

The appellee, Thomas P. Bullard, as executor of the will of Jessie Russ Harding, deceased, sued the appellant, R. H Harding, her surviving husband, in the court below upon a note of $500, executed by the latter to the testatrix February 23, 1899, payable one day after date, with 6 per cent. interest from its maturity, subject to the following credits, indorsed thereon: $222.29 as of July 1, 1902; $22 April 23, 1909; $19, July 6, 1909.

The answer of the appellant, containing five paragraphs and styled a set-off, counterclaim, and cross-petition, admitted the execution of the note, but alleged its payment in full and set up an indebtedness aggregating $2,461.40 claimed to be due and owing to him from the estate of the testatrix. This alleged indebtedness includes divers specified items, such as various sums of money claimed to have been advanced and paid by appellant for the testatrix, with interest on each from the date of the transaction; also the value of certain stock and other personal property alleged to have been wrongfully sold and the proceeds converted by the testatrix. Twelve hundred dollars of the indebtedness sued for, it is claimed, grew out of the following transaction: That is, it is alleged in the answer that the testatrix, on July 1, 1907, was conveyed by deed from Alfred McMullens and Blanche McMullens, his wife, a house and lot in the town of Dayton, Campbell county, this state, for which she agreed to pay them $1,200, $500 of which was due upon the delivery of the deed, and the remaining $700 was owing to the Citizens' Loan & Savings Association of Dayton, Ky. and secured by a mortgage which had been executed to it by McMullens and wife, which mortgage debt of $700 the testatrix assumed and agreed to pay; that she was without money to make the cash payment of $500 to McMullens or the $700 mortgage debt to the loan and savings association, and at her request appellant advanced and paid for her to McMullens the $500 and thereafter paid for her to the loan and savings association the mortgage debt of $700 due it, which payments, it was alleged, were made by him under an agreement with the testatrix that she would repay both amounts to him, or, in the event of her failure to do so, give him such interest in the Dayton house and lot as would equal the amount paid by him to McMullens and the loan and savings association, less what might be due the testatrix by way of balance upon the note of $500 upon which he was sued by her executor in this case; that such balance was more than liquidated by the cash payment of $500 which he made for the testatrix to McMullens, and he was thereafter informed by her that the note had been destroyed, which he believed to be true until suit was brought against him thereon by the executor; that the testatrix never repaid to him any part of the $500 he advanced for her to McMullens, or of the $700 which he paid to the loan and savings association in discharge of its mortgage, nor did she ever convey to him an interest in the house and lot conveyed her by McMullens and wife. It is further alleged in the answer: That the house and lot in Dayton which the testatrix purchased of McMullens and wife was before her death sold and conveyed by her to H. R. and Martha Guenther at the price of $1,250, $800 of which was cash in hand paid by the grantees. For the remaining $450 they executed to the testatrix sundry notes, payable monthly at the Bank of Dayton, Ky. That these notes or some part of them yet remain unpaid, and that appellant is entitled to a lien thereon, or the proceeds, in satisfaction pro tanto of his demands against the testatrix's estate, for which reason the Bank of Dayton and the Guenthers were asked to be made parties; that the answer of appellant be made a cross-petition against them and the appellee executor, and that they be required to make disclosure of the amount yet due upon the notes, and pay same into court subject to its order.

It will be observed, from what has been said of the averments of the answer, set-off, counterclaim, and cross-petition, that it does not allege that the agreement by which the testatrix undertook to give appellant an interest in the Dayton house and lot, in the event of her failure to repay him the sums he advanced in discharge of the consideration therefor, was in writing, and the fact that such agreement, if made, was violated and rendered impossible of performance by the sale and conveyance of the house and lot by the testatrix to the Guenthers was known to him, and the sale and conveyance assented to, is shown by his act in uniting with her in the deed to the grantees.

It is admitted by the pleadings that the testatrix, Jessie Russ Harding, was domiciled in Shelby county at the time of her death, and that the probate of the will and the qualification of the appellee as executor thereof took place in the county court of that county. The demands against the estate of the testatrix claimed and set up in the answer, set-off, counterclaim, and cross-petition of appellant were unsupported or unaccompanied by the statutory affidavits or other proof required of such claims, and neither by a reply nor order of record did the appellee controvert the allegations of the answer, set-off, counterclaim, and cross-petition of the appellant. No proof was taken by either of the parties, and on a submission of the case upon the pleadings the circuit court entered the following judgment:

"This cause being submitted on the pleadings, the answer containing a good defense not denied, it is adjudged that plaintiff's petition be dismissed, and defendant recover of plaintiff his costs incurred thereon. It is further adjudged that defendant's counterclaim, set-off, and cross-petition be dismissed without prejudice, and plaintiff recover of defendant his cost herein expended. This court had no jurisdiction."

Appellant complains of so much of the judgment as dismissed his set-off, counterclaim, and cross-petition; hence this appeal.

Whether by the expression contained in the closing sentence of the judgment, "This court has no jurisdiction," it was meant that the want of jurisdiction arose out of the fact that the matters pleaded in appellant's answer, set-off, counterclaim, and cross-petition, in the opinion of the court, involved a settlement of the testatrix's estate, which should be made in the county where she resided at the time of her death, her will was probated and the executor named therein qualified, or that the want of jurisdiction arose from the fact that appellant's demands against the estate of the testatrix were unsupported by the affidavits required by sections 3870, 3871, 3872, Kentucky Statutes, we are not advised. We assume, however, that the court did not regard itself as lacking in jurisdiction on the ground first mentioned, for the matters set up in the pleading in question do not appear to involve a settlement of the estate, as it is not alleged therein that there are not personal assets in the hands of the executor sufficient to pay the appellant's claims or any other demands that may exist against the estate. It is therefore unnecessary for us to pass upon the contention of appellant's counsel that the want of jurisdiction on the ground referred to, if any, was waived by the failure of appellee to raise that question by demurrer.

In view, however, of the provisions of the sections of the statute, supra, we conclude that what the circuit court meant by the language quoted was that, inasmuch as appellant's demands were not verified by the affidavits therein required it was without authority to render judgment for any part of them beyond giving him credit on the note sued on by the executor for such part of the moneys as he had advanced for or paid the testatrix as would discharge the balance due thereon. We are fortified in this conclusion by the fact that the first paragraph of the answer alleged full payment and discharge of the note, as well as the manner and date of the payment, which averments were undenied. Section 3870 provides that demands such as those attempted to be asserted by the appellant shall be verified by the written affidavit of the claimant--

"stating that the demand is just, and...