Harrod v. Harrod

• Decision Date: 14 December 1915
• Citation: 180 S.W. 797,167 Ky. 308
• Parties: HARROD ET AL. v. HARROD ET AL.
• Court: Kentucky Court of Appeals

180 S.W. 797

167 Ky. 308

HARROD ET AL. v. HARROD ET AL.

Court of Appeals of Kentucky.

December 14, 1915

Appeal from Circuit Court, Franklin County.

Action by Henry Harrod and others against John Harrod and others. From an order sustaining a demurrer to the petition, the plaintiffs appeal. Reversed.

Frank Chinn, of Frankfort, for appellants.

J. H Polsgrove and W. C. Marshall, both of Frankfort, for appellees.

MILLER C.J.

Marion Harrod, of Franklin county, died in 1899, leaving a widow Sallie Harrod, and four children, Henry, Irene, Denia Frances, and Turner Harrod, surviving him. At the time of his death Marion Harrod owned a farm of 59 acres, which was mortgaged to Thomas Farmer to secure a loan of $500. He left no personal estate, except a few articles which were set apart to his widow.

The petition to which the demurrer was sustained sets up the facts just mentioned, and further alleges that in July, 1900 John Harrod, one of the defendants, represented to Sallie Harrod, the widow, who was then living on the 59-acre tract with her four infant children, that if she would consent to his appointment as administrator of her husband's estate, he would manage to have the land sold for her benefit and in such a way that it would bring only the amount of the mortgage upon it, and that he would so manage it that the widow could get sufficient time to pay off the mortgage debt; that under said representation, and relying thereon, Sallie Harrod consented that the appellee John Harrod might be appointed administrator of her husband's estate, which was done; and that, in pursuance to the agreement, John Harrod, as administrator, filed a suit on July 27, 1900, in the Franklin circuit court against Sallie Harrod, the widow, and her children, except (Turner Harrod), all of whom were then under 14 years of age, and resided with their mother, and neither of them having any guardian, curator, or committee.

The petition further alleges that Dehoney & Graham, who held an unpaid undertaker's bill for $30 against the estate, and Oscar Farmer, as executor of Thomas Farmer, were made defendants to that action, and that for cause of action the petition in the old suit alleged that it was necessary to sell the land to pay the debts of the decedent and the expenses and costs of administration, that a summons was issued to Jefferson county, and there served upon Oscar Farmer, executor, but that no summons was served upon Sallie Harrod, the widow, or upon either of her children, or upon anybody representing them, nor were her said children, or any one representing them, in any way notified or advised of the pendency of the suit; and that, without any proof, the action was referred to the commissioner of the court for proof of claims, who reported the Farmer debt of $500, with interest, and the undertaker's bill of $30, above mentioned. And it is further alleged that Farmer's executor filed his answer, asserting his mortgage and making it a cross-petition, but that no summons was ever issued upon said cross-petition, and that a guardian ad litem was appointed for the three eldest infant defendants, who filed his report to the effect that he was unable to make any affirmative defense for the infants.

The petition further alleges that under that state of the record, the court entered a judgment in the old action on April 27, 1901, directing a sale of the 59 acres, or so much thereof as might be necessary for the purpose of paying the debts shown by the commissioner's report; that the land was sold pursuant to the judgment, after due advertisement, but that before the sale was made John Harrod entered into an agreement with the appellees John Moore and Harvey Gaines to the effect that they would announce and let it be known to everybody at the sale that the land was to be bought for the benefit of the widow, Sallie Harrod, so as to prevent competition in the bidding, and that they would procure some man who would buy it in for them, instead of buying it in for Sallie Harrod, the widow; that it was then agreed between the appellees that Harvey Gaines was to be the real purchaser of the land at as low a price as it could be bought for, and that he would sell to his coappellee John Moore one-third of the land for a sum sufficient to pay off the mortgaged debt, the costs, and Dehoney & Graham's bill of $30; that in pursuance of this agreement, and in order to carry it out Gaines and Moore procured Jasper N. Hutchinson to become the bidder for the land, and buy it in for them, which he did at the price of $677.22; and that there was no other bid at the sale.

It is further alleged that after Hutchinson executed his purchase-money bond on February 1, 1902, he transferred the benefit of his bid to the appellee Harvey Gaines, to whom the deed was made by the commissioner, and that, it appearing that Turner Harrod's name had been omitted from the commissioner's deed as a grantor, the action was redocketed on January 31, 1903, and the commissioner was directed to insert the name of Turner Harrod in the deed as a grantor, which was done.

The petition further alleges that the appellee John Harrod notified Sallie Harrod, the widow, in February, 1902, that the land had been sold to pay the mortgage, and that it brought only $60 more than the mortgage debt, and that she must give possession to Harvey Gaines, the purchaser; that she and her children were moved off the land in February, 1902, and Harvey Gaines took possession thereof in pursuance to the agreement made before the sale; that Harvey Gaines then sold to his coappellee John Moore about one-third of the tract for the amount which Gaines had paid for the whole tract; and that Moore then took possession of the portion which he had bought, and still has it in his possession.

It is further alleged that Harvey Gaines sold the remaining two-thirds of the land to the appellee John Harrod, who was the administrator and plaintiff in the original suit, and that John Harrod has ever since had and is now in possession of said land, claiming to be the owner thereof under his purchase from Gaines; that the 59-acre tract was at the time of the sale reasonably worth $2,000, and would have brought that sum at a fair sale thereof; but that the appellee Harvey Gaines and Hutchinson prevented the land from bringing a better price by announcing that Hutchinson was buying it in for the widow, Sallie Harrod, when, in truth and in fact, Hutchinson was really buying the land for the defendants John Harrod, Harvey Gaines, and John Moore, under the agreement hereinbefore recited.

It is also alleged that at the time of the sale in 1900 Henry Harrod was 14 years of age, Denia Frances Harrod, now Greenwell, was 12 years of age, Irene Harrod, now Phillips, was 10 years of age, and Turner Harrod was 4 years of age; that the agreement above set out between John Harrod, John Moore, and Harvey Gaines was a fraudulent conspiracy to deprive the widow, Sallie Harrod, and her infant children, of the said tract of land; and that it was carried out and resulted in the defendants Harrod, Gaines, and Moore becoming the owners of said land for less than two-thirds of its value, whereby the appellants were deprived, by the fraud, conspiracy, and deceit of Harrod, Gaines, and Moore, of their said land.

The petition herein, as above outlined, was filed in November, 1914, by Sallie Harrod and her children (Turner still being an infant) against the appellees John Harrod, John Moore, and Harvey Gaines for the purpose of setting aside the sale and all subsequent proceedings had thereunder in the old suit brought in 1900; and, the court having sustained a demurrer to the petition setting forth, in apt terms, the facts above recited, the plaintiffs prosecute this appeal.

Many errors are alleged and relied upon to avoid the effect of the judgment in the old suit of 1900; the chief complaint being that the court was without jurisdiction to make the sale, and that the judgment was void, and for that reason was subject to be attacked collaterally. The broader question of jurisdiction is, however, to be determined by the effect to be given to certain questions of procedure raised upon the old record.

1. But before considering the questions of procedure, it is proper to dispose of appellees' contention that this suit constitutes a collateral, and not a direct, attack upon the judgment in the old suit brought in 1900. We think, however, there can be no doubt that it is a collateral attack, and is consequently subject to the rule applicable in that class of cases.

In Baker v. Baker, Eccles & Co., 162 Ky. 694, 173 S.W. 109, a separate action was filed, as was done in the case at bar, attacking the validity of a domestic judgment, and the point was made that the procedure constituted a direct, and not a collateral, attack upon the judgment. But in overruling that contention the court said:

"We are also clear that the attack made on this Kentucky judgment was a collateral attack, as a direct attack on a judgment can only be made in the manner pointed out in the Code; that is to say, by prosecuting an appeal or by proceedings had under the Code and in the manner pointed out in sections 344, 414, and 518 for the modification or vacation of judgments. An attack made on a judgment in any other way is a collateral attack. Black on Judgments, vol. 1, § 252; Van Fleet on Collateral Attack on Judicial Proceedings, § 2; Duff v. Hagins, 146 Ky. 792 ."

See, also, Exchange Bank v. Ault, 102 Ind. 322, 1 N.E. 562.

With perhaps two exceptions, all of the many cases referred to by the appellees as sustaining their view were cases in which there was a direct attack upon the judgment in question either by answer filed to the original petition setting up...