Lexington Brewing Co. v. Hamon

• Decision Date: 12 November 1913
• Citation: 155 Ky. 711,160 S.W. 264
• Parties: LEXINGTON BREWING CO. v. HAMON et al.
• Court: Kentucky Court of Appeals

160 S.W. 264

155 Ky. 711

LEXINGTON BREWING CO. v. HAMON et al.

Court of Appeals of Kentucky.

November 12, 1913

Appeal from Circuit Court, Scott County.

Petition by the Lexington Brewing Company against Thirza J. Hamon and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bradley & Bradley, of Georgetown, for appellant.

B. M Lee, of Georgetown, for appellees.

MILLER J.

R. J Hamon, of Scott county, died intestate on June 1, 1910 leaving a widow, Thirza J. Hamon, and three children, Andrew W., James W., and Jesse S., Hamon, surviving him. His estate consisted of an inconsiderable amount of personal property and a farm of 112 acres, lying near Finnell, and worth about $3,000. On September 23, 1910, the widow, Thirza J. Hamon, and her son Andrew W. Hamon brought this action against James W. Hamon and Jesse S. Hamon for a sale of the farm, upon the ground of its indivisibility, for the allotment of dower to the widow out of the proceeds, and the division of the remainder of the proceeds among the three children. Thirza J. Hamon qualified as administratrix of her husband, but brought the action in her own name as widow. As administratrix, she was not a party in the original petition. On October 22, 1910, a judgment was entered, granting the prayer of the petition, adjudging the land to be indivisible without materially impairing its value, and directing its sale for the purposes named in the petition. The judgment contained this clause: "It is adjudged by the court that said widow is entitled to dower in said land, and that the plaintiffs James W. Hamon and Andrew Hamon, and the defendant, Jesse S. Hamon, are entitled to one-third each of the proceeds of said land, subject to the dower interest of the plaintiff Thirza J. Hamon." On November 21, 1910, the land was sold for $2,800, upon a credit of 6 and 12 months for equal portions of the purchase money. On March 7, 1911, James W. Hamon borrowed $400 from the Lexington Brewing Company, executing his note therefor, which contained a memorandum indorsed below his signature, to the effect that the note was secured by the assignment of Hamon's interest in the estate of R. J. Hamon, and also by a city liquor license. At the same time James W. Hamon signed and delivered to the brewing company the following paper: "Thirza J. Hamon, James W. Hamon and Andrew Hamon v. Jesse Hamon. In consideration of $400.00 this day paid to me by the Lexington Brewing Company, I hereby sell, transfer and assign to the said Lexington Brewing Company all of my interest in the purchase money of land heretofore sold in the above action by the master commissioner of this court, and for which the purchaser has executed bonds which will hereinafter become due as shown by the records of this court; and I hereby request the court to enter an order directing any money or funds that may be due out of the proceeds of sale in this action to be paid to the said Lexington Brewing Company; and hereby authorize the master commissioner of this court to pay over to the said brewing company all or any funds that may be now or hereafter due to me out of said proceeds of sale. Witness my hand this 7th day of March, 1911. James W. Hamon." On May 4, 1911, the brewing company tendered its petition to be made a party to this action, setting up the assignment to it from James W. Hamon, and asking that Hamon's interest in the purchase money be paid to the brewing company.

On October 20, 1911, Thirza J. Hamon, as administratrix of R. J. Hamon, filed her answer to the petition of the brewing company, in which she alleged that whatever interest in said estate, or in its proceeds, that James W. Hamon had was held by her as security for the payment of a note for $180.64, which James W. Hamon had executed to the Leesburg Bank, with R. J. Hamon as his surety, and also to secure the repayment of $250, which she, as administratrix, had advanced to James W. Hamon on January 10, 1911, on his interest in said estate. She alleged, and proved, that she had paid the note due the bank for $180.64, upon which her intestate was surety, and that James W. Hamon had directed her to pay the same out of his interest in the estate, and to charge it to the said James W. Hamon in the settlement thereof, long before the assignment of his interest to the brewing company. Issues were made as to this assignment; and in avoidance the brewing company set up a plea of estoppel against the administratrix. In this plea the brewing company stated that when James W. Hamon applied to it to borrow the $400 it sent its representative to the master commissioner of the court to ascertain what interest James W. Hamon had in the estate of his father and that the commissioner informed the company's representative that no debts had been proven against the estate and that after paying the costs of the suit there would be about $600 due James W. Hamon. The company does not claim that it had any conversation or dealings with the administratrix in this connection but rests its estoppel upon the fact that she had procured the judgment hereinbefore referred to and set out, in part, which declared that the land belonged to the three children equally, subject only to the dower interest of the widow, and that the three children would be entitled to one-third each of the proceeds of the land, subject to the dower interest.

The proof upon the question of the assignment from James W. Hamon to Thirza J. Hamon as administratrix is found in the following extract taken from her deposition, to wit: "Q. What was the agreement between you and James W. Hamon, if there was any agreement, about how and when this money should be paid to you which you advanced to him in January, 1911? A. When he got the part from his father's estate. It was coming through my hands, and he told me just to keep it out. Q. If you had any conversation with him at that time, or prior to that time, with reference to the payment of the Leesburg Bank debt for which his father was surety, state the agreement. A. It was about the same agreement. He said when he got his part of the estate that was to be paid. Q. Why didn't you take steps to collect the money by suit or otherwise? A. Well, I thought it was safe, you know; I just thought the money was coming through my hands, and didn't think there would be any difficulty about it at all. *** Q. At the time you made the loan or advancement to him of $250 I...