Leonard v. Williams

• Citation: 265 S.W. 618,205 Ky. 218
• Parties: LEONARD ET AL. v. WILLIAMS.
• Decision Date: 24 October 1924
• Court: Court of Appeals of Kentucky

265 S.W. 618

205 Ky. 218

LEONARD ET AL. v. WILLIAMS.

Court of Appeals of Kentucky.

October 24, 1924

Appeal from Circuit Court, Hardin County.

Action by Charles Leroy Williams against W. F. Leonard and others. From adverse judgment, defendants appeal. Affirmed and remanded.

G. K Holbert and H. L. James, both of Elizabethtown, for appellants.

L. A Faurest, of Elizabethtown, for appellee.

CLARKE J.

Appellee Williams by his petition herein asserted title to a described tract of land by inheritance from his father, David S Williams, which he alleged the defendant was holding and claiming without right under and through him, and sought to recover possession thereof. The defendant traversed the petition, and asserted ownership of the land by purchase thereof by a remote vendor at a judicial sale of same to pay the debts of plaintiff's father, David S. Williams, and sought, if denied title, to be subrogated to the rights of David S. Williams' creditors in that action to a lien on the land for the amount of their claims.

It is therefore clear that the parties by their pleadings claimed title to the land in dispute from a common source, David S. Williams, and that defendant was not entitled to have the petition dismissed because of plaintiff's failure to trace his title beyond the common source. Watkins v. Northern Coal & Coke Co., 132 Ky. 700, 116 S.W. 1192; Id., 119 S.W. 225; Cryer v. McGuire, 148 Ky. 100, 146 S.W. 402, Ann. Cas. 1913E, 485; May v. C. & O. Ry. Co., 184 Ky. 493, 212 S.W. 131.

Indeed defendant's answer, despite its traverse of the averments of the position, and attempt to plead defendant's alleged title simply as an estoppel, really put in issue only the question of whether or not the court had jurisdiction of plaintiff in the action in which David S. Williams' title to the land was sold, since obviously defendant could not both deny David S. Williams' title, and, claiming thereunder, obtain the affirmative relief of subrogation to the rights of his creditors, together with all other proper and equitable relief to which under that sale he was entitled as was his prayer.

If defendant wanted to avoid the consequences of claiming title from a common source, he should have stood upon his denial of plaintiff's title, and he will not be heard to say that such only was his purpose when he has in fact asserted superior title from a common source, and asked a lien upon and sale of the land because of the facts alleged, if they do not prove title in him.

The next insistence for appellants is that the court erred in finding as a fact that plaintiff was not constructively summoned in the action wherein the land was sold to pay his father's debts, it being...