Liter v. Fishback

• Decision Date: 10 June 1903
• Citation: 75 S.W. 232
• Parties: LITER v. FISHBACK.
• Court: Kentucky Court of Appeals

75 S.W. 232

LITER v. FISHBACK.

Court of Appeals of Kentucky.

June 10, 1903

Appeal from Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Action by C. L. Fishback against W. W. Liter. Judgment for plaintiff, and defendant appeals. Affirmed.

Lane &amp Harrison, for appellant.

E. L McDonald, John M. Scott, and Chas. Bowser, for appellee.

BURNAM C.J.

The appellee, Claude L. Fishback, who was plaintiff in the court below, instituted this suit against the appellant, W. W Liter, for the possession of a tract of 15.6 acres of land lying in Jefferson county. He alleges, in substance, that on the 11th day of October, 1888, his father and statutory guardian, Edward P. Fishback, brought a suit against him in the Louisville law and equity court when he was an infant, in which he alleged that he was the owner as tenant by the curtesy of a life estate in the land, and that plaintiff was the owner of the remainder in fee; that he sought to have the property sold, and out of the proceeds the value of his life estate paid to him, and the remainder reinvested in other real estate for plaintiff; that a judgment was rendered in this proceeding on the 18th of March, 1890, decreeing a sale thereof, and under which judgment the marshal of the court sold the property to William B. Mann at the price of $520 which was confirmed, and that thereafter a deed conveying the property was made to Mann in consideration of the purchase price; that subsequently, on the 11th day of January, 1896, Mann and wife conveyed the property to the defendant, Liter, who was in possession thereof. The defendant, in his answer, alleged that the suit of Edward P. Fishback against plaintiff, in which the decree for the sale of the land was entered, was brought pursuant to the provisions of section 491 of the Code for a reinvestment of the proceeds in other real estate; and that the Louisville law and equity court had jurisdiction of the subject-matter of the suit and persons of the plaintiff and defendants prior to the rendition of the judgment; and that its judgment had never been vacated, set aside, modified, or appealed from, and is in full force and effect; and pleaded the judgment in that case and the proceedings had thereunder as a bar to plaintiff's cause of action. The plaintiff, in his reply, denies that the Louisville law and equity court, in the action of Edward P. Fishback v. C. L. Fishback, had jurisdiction for a sale of the property for purposes of reinvesting the proceeds in other real estate, and denies that he ever received the benefit of the purchase price paid into court in that action, or any part thereof, or that he now keeps and retains same. In the second paragraph of his reply he denies that the judgment of sale was made in pursuance of section 491 of the Civil Code, but that it purported to be rendered in pursuance of section 490 of the Code, as it ordered a sale of the property because it was indivisible, and that the proceeds might be divided between Edward P. Fishback and the plaintiff. He alleges that the court had no jurisdiction to render the judgment, and that it was void, and charges that no reinvestment was ever made of the proceeds, but that his father and guardian was permitted to withdraw the entire purchase money from the court, and appropriate it to his own use; that both Edward P. Fishback and John Hawkins, the security on the bond which was given by Fishback as guardian, had both died many years ago, insolvent. The case was submitted on the pleadings, and the chancellor held that the judgment under which plaintiff's lot was sold was void, and that no title passed, and directed that a writ of possession should issue therefor in favor of the plaintiff, and the defendant has appealed.

The question for decision is, did the Louisville law and equity court have jurisdiction to decree a sale of the infant's real estate under the allegations of the petition? The law is well settled in this state that the powers of courts of equity to sell and reinvest infants' real estate are...