Karl v. Conner

• Decision Date: 06 December 1906
• Citation: 97 S.W. 1111
• Parties: KARL v. CONNER ET AL.
• Court: Kentucky Court of Appeals

97 S.W. 1111

KARL v. CONNER ET AL.

Court of Appeals of Kentucky.

December 6, 1906

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by one Albrecht and another against Philip Karl, in which the National Building & Loan Association and J. J. Conner, having mortgage liens on defendant Karl's real estate, asserted their liens. From a judgment in favor of the mortgagees defendant C. D. Karl appeals. Affirmed.

D Moxley, for appellant.

Rowan Hardin, for appellee Conner. Woolfolk & Klein, for appellee National Building & Loan Ass'n.

CARROLL C.

The National Building & Loan Association had a mortgage on real estate owned by Philip Karl. The appellee J. J. Conner had a junior mortgage on the same property. Albrecht and Heik brought a suit to subject this mortgaged property, and in this action the building and loan association and Conner asserted their respective liens. The claim of Albrecht and Heik was in some manner settled, and has no connection with this controversy. While these actions were pending, Philip Karl made some arrangement with the building and loan association by which its claim was temporarily adjusted, and its action against him dismissed without prejudice. Conner's suit was not pressed, and thus the matter stood for some three years, when, Karl again being in default with the building and loan association, it reinstituted its action against him, without any notice to Conner of the fact that the action had been again instituted, and judgment was taken by default against Karl for the amount of the debt due the association. Under this judgment the property was sold, and bought by the association for the amount of its debt, $550 and a short time afterwards was conveyed by it, with deed of general warranty, to A. Knoechelman in consideration of $525. Thereupon Knoechelman conveyed the property with covenant of special warranty to appellant C. D. Karl. No further steps were taken in the action until 1903, when Conner, whose mortgage debt was unsatisfied, filed in the action, which was yet on the docket, an amended and supplemental answer and cross-petition against Knoechelman and Karl, setting up that he had ascertained that the claim of the building and loan association had been satisfied, and that these parties had some interest in the property, and asking that they be made parties, and that he have judgment as prayed for in his original pleading. Thereupon the appellant Karl filed his answer and made it a cross-petition against the building and loan association, seeking to recover from it on its covenant of general warranty any loss that he might sustain by reason of the debt asserted by Conner against the property. To this cross-petition the building and loan association filed an answer, alleging, among other things, that the clause in the deed conveying the property to Knoechelman with covenant of general warranty was inserted by mistake, that it should have been a special warranty, and asked that the deed be reformed and the mistake corrected. Evidence was taken upon the issue made between the building and loan association and Karl, and it was finally adjudged that a mistake was made in the deed, and it was corrected so as to convey the property by special and not general warranty, thus relieving the building and loan association from any liability upon its warranty, and Conner was given judgment for his debt against the property. From this judgment Karl appeals.

Before the judgment in favor of Conner was entered, it being conceded by all parties that the lien of the association was superior to the lien of Conner, and that Karl, by virtue of his purchase from the association through Knoechelman, was substituted to the superior lien of the association, it was agreed by the parties that the amount necessary to be paid by Conner to Karl for the...