Haskins v. Spiller

• Decision Date: 10 November 1835
• Citation: Haskins v. Spiller, 33 Ky. 573 (Ky. Ct. App. 1835)
• Parties: Haskin and Others v. Spiller.
• Court: Kentucky Court of Appeals

33 Ky. 573

Haskin and Others v. Spiller.

Court of Appeals of Kentucky.

November 10, 1835

FROM THE CIRCUIT COURT FOR GREEN COUNTY.

Mr Crittenden for Appellants

Messrs Sanders and Depew and Mr. Willis for Appellee.

OPINION

EWING JUDGE.

This case was heretofore before this Court, and a report of it will befound in 1 Dana, 170.

Where one who, though not a necessary party, is made a defendant in chancery, is interested in the suit and will be bound by the decree, and being a non-resident, is summoned by advertisement--he should be permitted to file an answer at any time while the cause remains in power of the court; for he would have a right to open the decree at any time within seven years.

Upon the return of the cause to the Circuit Court, after an interlocutory decree was rendered, William B. Cook, a non-resident defendant, who had been proceeded against by publication, appeared and exhibited his answer, and moved the Court to set aside the interlocutory decree, and permit him to file the same. The Court overruled his motion, and refused leave to file his answer.

We can not perceive upon what ground the Court refused him this privilege.

He was the vendee of the devisee, B. C. Spiller, of all the land in controversy, and was the vendor, with general warranty mediately or immediately, to all the other defendants, and was therefore deeply interested in the result of the suit. And though it was not necessary for the complainant to have made him a defendant, as he had conveyed the legal title to the other defendants, who were in possession, and to whom alone the complainant was bound to look in the prosecution of his suit, yet as he had made him a defendant, and proceeded against him as a non-resident, and as the decree, against him, would conclude him, it was competent for him to appear at any time within seven years, even after a final decree and ask the Court to open the decree, and permit him to file his answer. Much more while the cause was in fleri, and under the immediate control of the Court, should he have been indulged in this privilege.

Commissioners were sent out, under the directions of the interlocutory decree, to lay off and allot to the complainant his part, and to assess the value of the improvements, rents, deterioration of soil and waste--who discharged this duty, and made their report to the Court. A motion was made to set it aside, for various errors on its face, which was overruled by the Court, and the report received and confirmed; to which opinion of the Court, there is an exception.

Where improvement are made upon land, by a bona fide occupant, who, losing the land, is required to account for the rents and profits--the estimate of rent should be made with reference to the condition of the land at the time when the occupant entered upon it; he is not to pay rent for improvements he has made himself, and for which he can only get pay according to their deteriorated value.

It is perceived, on the slightest...