Meddis v. Dellenger

• Decision Date: 17 January 1902
• Parties: MEDDIS v. DELLENGER et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 185

112 Ky. 500

MEDDIS v. DELLENGER et al. ^[1]

Court of Appeals of Kentucky.

January 17, 1902^[2]

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by John H. Dellenger and others against Charles S. Meddis for specific performance of a contract. Judgment for plaintiffs and defendant appeals. Affirmed.

Lem H McHenry and John J. McHenry, for appellant.

C. H Shield, for appellees.

WHITE J.

This is an action for specific performance of a contract of sale of realty. Appellant admitted the contract, but declined to comply, because, as he alleged, appellees were unable to convey a title in fee, for various defects in the title suggested in the answer. The court sustained a demurrer to the answer, and adjudged specific performance, and hence this appeal.

It is alleged in the answer that appellee derived title by purchase at a judicial sale in an action to settle the estate of Louis Lentz, deceased; that Lentz derived title by purchase at judicial sale in an action No. 32,754, brought by Floyd Frye to sell said land in order to its reinvestment. It is in this action No. 32,754 that there is a defect of title pleaded. The facts as to that action are that Floyd Frye was the owner and holder under the will of his grandfather, Floyd Parks, of a defeasible fee in this land, the defeasance being that Frye should die without issue of his body. Frye instituted action No. 32,754 to sell the land and to reinvest the proceeds in other property in the state of Indiana. In that action Frye made all living persons who might take under the will of Floyd Parks in case of defeasance parties defendants. All who would first take under the will were either actually served with process or appeared and answered, but some of the defendants to that suit who might, in case of defeasance inherit through the parents, or take under the will by reason of the death of their parents, if that should occur before defeasance, were nonresidents, and were not personally served, and did not appear. It appears from the record of that suit No. 32,754 that an affidavit for warning order was made, and the clerk indorsed on the petition and on his docket that a warning order had been made, and an attorney appointed to represent the nonresidents; but the warning order itself is not in the record. It was not written on the petition, and is not found in the papers of the case. The nonresidents' attorney made his report, and the proceedings thereafter are regular, as the record shows. The land was sold, and by judgment the proceeds were invested in lands in Indiana, to be held under the same conditions and limitations as the lands here were held by Frye. These proceedings and judgment were had and rendered in 1878. It is alleged that the appellee Dellenger, since his purchase at decretal sale, had brought an action to quiet his title, in which he obtained judgment, but that in that action there were nonresidents constructively summoned, and that such judgment had not been rendered five years, and it was therefore possible for any defendant herein to obtain a new trial if the defect suggested in action No. 32,754 was well taken, and thereby rendered the judgment and decree void. The question presented by the answer pleading a defect in the title is: Is the judgment rendered in 1878 at the instance of Floyd Frye--case No. 32,754--void by reason of the fact that the warning order written...