Howe v. Anderson

• Decision Date: 21 June 1890
• Citation: 14 S.W. 216
• Parties: HOWE et al. v. ANDERSON et al.
• Court: Kentucky Court of Appeals

14 S.W. 216

HOWE et al. v. ANDERSON et al.

Court of Appeals of Kentucky.

June 21, 1890

Appeal from circuit court, Powell county.

"Not to be officially reported."

Wm. H Holt and Wood & Day, for appellants.

H. C Lilly and J. B. White, for appellees.

LEWIS C.J.

About 1852, Kincaid, being the owner, sold and conveyed a large tract of land situated in the counties of Wolf and Powell to Moses Spencer, who being unable to pay for it a new contract was made by which the land was sold to Moses Spencer, W. T Spencer, and William Congleton, Kincaid giving to them a titlebond, dated in 1853. About 1860, Kincaid brought suit in the Wolf circuit court to enforce his lien for the purchase price, to which was after his death revived in the name of Edward Kincaid, administrator, and the heirs at law, and in 1866 judgment was rendered for a sale of the land, and at the sale P. C. Bedford and Thomas Turner became the purchasers at $450; but at the fall term of the court, to prevent opposition to confirmation of the sale, they made a written agreement with Kincaid's administrator, and through him for all the heirs, and with Moses Spencer, W. T. Spencer, and Congleton, by which no opposition was to be made to confirmation of the sale. Turner and Bedford were to pay $800 for an undivided half of the land, two-thirds of the other half was to be the property of W. T. Spencer, and the remaining one-third of that half to be the property of Congleton, and all the other parties executed to Turner and Bedford a bond for title, and thereupon an order was made dismissing the action. In 1867, Turner and Bedford purchased the interest of W. T. Spencer, and thus were owners of 40/48 of the land, and A. C. Tenney became owner of Congleton's interest, 8/48. In 1868, Bedford, with consent of Turner conveyed, by deed recorded in the proper office, his entire interest, being 20/48 to J. H. Trimble, who, however, at the same time gave his obligation to reconvey one-half thereof or 10/48 to Bedford upon payment of certain money. Shortly thereafter Trimble made a deed of assignment for benefit of his creditors, but by a compromise between his trustee and creditors his property was restored to him. In February, 1870, Trimble sold and executed title-bond for 5/48 of the land to James Turley, who in July, 1875, transferred and assigned the bond to appellant Permelia Fisher.

It appears that prior to 1874, C. G. Ragan was sheriff of Montgomery county, and by an arrangement Josiah Anderson and J. H. Trimble were to furnish the bond and attend to duties of the office as his deputies. But in 1874 Ragan defaulted to the amount of $29,000 to the county for which judgment was rendered against them and their sureties. Of that amount Anderson and the sureties he had procured to go on the bond agreed to and did pay $9,000, and Trimble and his sureties agreed to pay $20,000, and did pay all of it except $2,400 for which the county held a note taken after the judgment was rendered, and, that sum having been paid by appellants Howe & Marks, the note therefor was transferred to them by the county. At the time that note was given to secure payment of Trimble's part of the judgment, which was in 1874, he executed to his sureties a mortgage on his property, including the 5/48 of the land in Wolf and Powell counties left after his sale to Turley, but except that all the mortgaged property had been sold before the note for $2,400 was paid by Howe & Marks; and they therefore claimed the benefit of the mortgage lien on the 5/48 held by the other sureties, about which there does not appear to be or to have been any dispute on part of either the county or other sureties. It appears that in 1873 there was an arrangement by which Josiah Anderson, J. J. Anderson, and J. W. Clay became owners of the 10/48 of the land which Trimble had agreed in 1868 to reconvey to P. C. Bedford, and by their written directions he conveyed it to T. C. Anderson, a son of J. J. Anderson, who afterwards conveyed, or attempted to convey, the entire 20/48 originally owned by P. C. Bedford to one English, his brother-in-law. In May, 1875, the Andersons and Bedford, by their attorney, Corneilison, caused the action of Kincaid v. Spencers, which had been dismissed in 1866, to be reinstated on the docket of the Wolf circuit court, and a commissioner of court to be appointed, who made a deed for the entire tract as follows: To Turner for 20/48 thereof; to William Mitchell and B. F. Chenault for 20/48; and to Tenney for 8/48. Subsequently Mitchell, by quitclaim deed, conveyed his interest to Chenault, and the latter, by quitclaim deed, conveyed 3/4 of 20/48 to M. L. Anderson; and February 4, 1881, Chenault and M. L. Anderson, in consideration of three lots in Paris, conveyed to appellee J. M. Thomas the 20/48 interest undivided in the land. The appellants Permelia Fisher and Howe & Marks, in May, 1881, instituted separate actions in the ...