Kellar v. Stanley

• Decision Date: 29 October 1887
• Citation: 86 Ky. 240,5 S.W. 477
• Parties: KELLAR and others v. STANLEY and others.
• Court: Kentucky Court of Appeals

5 S.W. 477

86 Ky. 240

KELLAR and others v. STANLEY and others.

Court of Appeals of Kentucky.

October 29, 1887

Appeal from Louisville law and equity court.

For former opinion in this case, see 4 S.W. 807. A petition for rehearing was afterwards filed and overruled, and the following opinion rendered.

S. B Seymour and Young & Trabue, for appellants.

John Stites, Lane & Burnett, and F. T. Fox, for appellees.

LEWIS J.

By will admitted to record in 1843 in the state of Mississippi, and subsequently recorded in the Jefferson county court clerk's office, William Cotton devised to Mary Bryant for life, remainder in fee to her children, the lot of land in controversy, situated in the city of Louisville. In 1847 Mary Bryant, her husband joining in the deed, conveyed her interest in the lot to Henning, who conveyed the same to Delph; and in 1846 the latter conveyed the same interest to Michael Fillion, there being in the deed to him the following recital: "The estate hereby conveyed being an estate for life of Mary Bryant, and no more. (See Will Book No. 3, page 357, Cotton to Bryant; and Book 68, Bryant and wife to Henning; and Book 69, Henning to Delph.)"

February --, 1863, Fillion filed in the Louisville chancery court a petition in equity against "the unknown children of Mary Bryant and Charles Bryant, her husband," asking judgment for an alleged debt against them, and the enforcement of a pretended lien on the lot to satisfy it. He stated in the petition that the lot in question had been devised by William Cotton in the manner mentioned; that he had paid for Mary Bryant and her children, at her request, the sum of $129.02, state and city taxes thereon, and for curbing and paving in front of it, whereby a lien thereon was created; but concealed from the court the fact that he was the owner of the life-estate therein, and his own consequent liability for the taxes and assessments. February 27, 1863, the clerk of the court attempted to issue a summons against the defendants, directed to the marshal of the Louisville chancery court, and on the same day issued, or attempted to issue, an order of attachment upon the property of the defendant, directed to the same officer. February 28, 1863, the officer made return on the order of attachment that he had executed it by delivering a copy of the same to the "tenant in possession, and by attaching a lot of ground on north side of Walnut street, 26 1/4 front, extending back same width to alley; being same property devised by Cotton to Mary Bryant for life, and to her children, by will recorded in Will Book 3, page 357."

March 6, 1863, upon proof made in open court that "Charles Bryant and Mary Bryant, children and heirs of Mary Bryant, party defendant hereto, are non-residents of this state," an order of warning was made; and June 26, 1863, judgment was rendered in that action for a sale of the whole estate in the lot, as well as the interest of the plaintiff himself, though not so specially recited, as of the children of Mary Bryant, in order to satisfy the alleged debt and costs; and the sale, having been made, was, October 16, 1863, confirmed, and the deed directed to be made to the plaintiff, who was the purchaser.

But it appears that in 1868, within five years from rendition of the judgment, there was the following proceeding: "Came the defendants, Charles and Mary Bryant, Mary B., Sarah A., and John W. Bryant, by counsel, and filed their answer herein, with notice executed on the plaintiff, and said defendants moved the court to retry the case." It further appears that at the same time the defendants executed and filed the bond for costs required in such cases. With their answer they filed written evidence of title, and the several conveyances by which the plaintiff had become, and was in 1856, before the taxes and assessments mentioned in the petition accrued, owner of a life-estate in the lot. They denied in their answer they were liable as owners of the interest in remainder for such taxes and assessments, or that the plaintiff was requested by Mary Bryant to pay therefor, and prayed for judgment in their favor and all proper relief.

April, 1870, final judgment was rendered in the action setting aside the judgment of 1863, and the sale made in pursuance of it, and dismissing the petition of the plaintiff, Fillion.

This action was instituted in 1883, by Mary Stanley and other children of Mary Bryant, and devisees of the will of William Cotton, against I. H. Kellar and wife, L. V. Kellar. In their petition, the plaintiffs, after reciting the history of their title to the lot, of the action of Michael Fillion against them, allege that the judgment rendered therein in 1863 was fraudulently obtained by him; that in July, 1864, he attempted to convey the entire estate in the lot to one Bensinger, and he, in September, 1864, attempted to convey the same to L. V. Kellar, who, with her husband, claims she is the owner of the fee thereof, and holds the lot adversely to the plaintiffs, whereby there exists a cloud upon their title, and the market value of their estate in the lot is impaired. The relief prayed for in the petition is that the deed from Fillion to Bensinger, and the one from him to the defendant L. V. Kellar, be set aside and held for naught, so far as either of them purport to convey an estate in the lot greater than for the life of Mary Bryant; that the plaintiffs be adjudged the owners thereof, subject only to such life-estate, and that their title be quieted. And the judgment rendered is that they are the owners of the remainder in fee; that the deeds mentioned operated to invest the defendant L. V. Kellar with only such life-estate; and the judgment of 1863, in favor of Fillion, and sale under it, are void, and divested the plaintiffs of no interest. From that judgment Kellar and wife have appealed.

1. As appellant claims under the will of William Cotton, it does not seem to us she is in a position to call in question its validity, or deny it has been in due form of law probated and admitted to record in this state.

2. Nor...