Mulligan v. Mulligan

• Decision Date: 15 December 1914
• Citation: 171 S.W. 420,161 Ky. 628
• Parties: MULLIGAN v. MULLIGAN.
• Court: Kentucky Court of Appeals

171 S.W. 420

161 Ky. 628

MULLIGAN v. MULLIGAN.

Court of Appeals of Kentucky.

December 15, 1914

Appeal from Circuit Court, Fayette County.

Petition by the Lexington Banking & Trust Company against J. H Mulligan and against Genevieve Morgan Mulligan, his wife, and others, for the construction of a trust deed and guidance in the execution thereof, and for a settlement thereof. From a judgment construing the deed and settling the rights of the parties, J. H. Mulligan appeals, and Genevieve Morgan Mulligan cross-appeals. Reversed on original appeal, and affirmed on cross-appeal.

Geo. B Kinkead and James H. Mulligan, both of Lexington, for appellant Mulligan.

Falconer & Falconer, of Lexington, for appellant Lexington Banking &amp Trust Co.

O'Rear & Williams, of Frankfort, for appellee.

HANNAH J.

J. H Mulligan, a citizen of Lexington, was in February, 1913, the owner of real estate valued at $100,000 to $125,000, and comprising a farm known as the "McCoy Place," near Lexington, and various parcels of real estate within the city. Roughly speaking, about half of this real estate in value was nonproductive, while of the remainder there were a number of parcels, the income derived from which was so negligible, compared with their market value, as to render them unprofitable and undesirable investments.

Mr. Mulligan was in debt, and had been in that condition for some years. In point of fact, some of his indebtedness seems to have been inherited along with some of his real estate. His obligations included approximately $7,000 of accrued and delinquent taxes due the city of Lexington, approximately $14,000 of indebtedness secured by mortgages on parts of his real estate, and other unsecured debts aggregating in all a rough total of about $25,000. The interest on this indebtedness, together with the taxes, repairs, insurance, and other fixed charges on his real estate, absorbed such an undue proportion of the income derived therefrom as to confront him with the necessity for a readjustment and lightening of the burden. It seems that he and his wife were unable to reach any agreement, however, as to what particular pieces of real property should be sold. It is contended that she refused to unite in a conveyance of any of it. It is clear that she firmly declined to unite in any conveyance of the property occupied by the Mulligans as a home, which is known as "Maxwell Place," and consists of some 13 acres of land in the city of Lexington, which is quite valuable. She suggests in her answer that it was the home of her husband's parents; "that it is suitable at present only for a residence; that it furnishes pasturage for the milch cow and driving horse and a kitchen garden." Mr. Mulligan desired, however, to sell this place, or part of it at least, suggesting that to one in his financial condition this land was much too valuable to be kept for a "garden which yields only its accustomed crop of weeds," and for pasturage for one "pathetic cow," and as a recreation ground on which one old grey mare might "occasionally kick up her heels in the sunshine, congratulating herself that in her old age she is still left 'to trod alone some banquet hall deserted,' if pasture land at $2,000 per acre to the eyes of an ancient equine could be so likened."

Mr. Mulligan had no personal property out of which he could pay anything on his indebtedness. He was 69 years of age, and, so far as the record shows, had no income other than that derived from his real estate. With matters in this condition, he executed on February 25, 1913, to the Lexington Banking & Trust Company a trust deed, conveying to it in trust his entire estate in Kentucky, consisting of about 20 pieces of real estate. By the terms of that conveyance, the trustee was to collect the rents, pay the taxes, make the necessary repairs on the real estate, sell so much of it as was necessary to pay Mr. Mulligan's debts, and reconvey the residue to him.

The deed contained a provision that, should Mrs. Mulligan fail to unite therein, the trustee should out of the proceeds of the sale of any of the property which might be sold by it, and in which she had not released dower, pay to her the cash value of her inchoate right of dower in the property so sold upon her release thereof. Mrs. Mulligan failed to unite in the execution of the trust deed. On the next day after its execution, the trustee, Lexington Banking & Trust Company, filed its petition in the Fayette circuit court against James H. Mulligan, Genevieve Mulligan, his wife, and certain mortgage creditors, seeking an interpretation of the trust deed and the guidance of the chancellor in the execution of same and for a settlement thereof. Notwithstanding the fact that her inchoate right of dower was arranged for in the trust deed, and was besides the subject of judicial protection, Mrs. Mulligan filed an answer in which she stated that her release of her inchoate right of dower in any of her husband's real estate would depend upon what properties were sold.

On May 24, 1913, the cause was referred to the court's master commissioner to receive proof of claims against Mr. Mulligan, and to determine which of his properties it was best to sell for the purpose of paying his indebtedness. The commissioner fixed May 29, 1913, for a hearing; but the parties by agreement adjourned to June 11, 1913, pending an effort to bring about an agreement between Mr. Mulligan and his wife. This having failed, the commissioner fixed November 3, 1913, for a hearing; and on December 13, 1913, he filed his report of claims presented and recommendations as to what real estate should be sold, and the order in which it should be offered, recommending the sale only of property upon which there were already mortgage liens, and as to which Mrs. Mulligan had theretofore released her inchoate right of dower by joining in the mortgages thereon. However, after the filing of the commissioner's report, Mrs. Mulligan filed an amended answer, consenting and agreeing to relinquish dower in any of the lands mentioned in the trust deed, except Maxwell Place, and agreeing to take the cash value of her dower right, to be ascertained by the court, in those tracts which were not mortgaged, and in the excess of the sale price over the mortgage in respect of those that were mortgaged.

On February 21, 1914, a judgment and order of sale was entered, whereby it was ordered that so much of Mr. Mulligan's real estate as was necessary to pay his debts should be sold; Mrs. Mulligan to have the same dower interest in the proceeds of sale as she had in the property sold. The judgment further provided that:

"In the event of the sale of any mortgaged property of said James H. Mulligan, in which mortgage his wife has heretofore joined and relinquished her dower therein, it is adjudged that if said properties or any of them bring a sum or sums in excess of said mortgage thereon, respectively, then said Mrs. Mulligan would have dower in such excess; and that such dower in such excess should be estimated and paid to her as above provided."

The master commissioner was directed to "hear evidence of the value of Mrs. Mulligan's inchoate dower in such properties, taking the accepted bids at which the properties were sold as the valuation of said properties for the purpose of estimating the value of her dower right."

On April 18, 1914, the master commissioner filed his report of sale, and on April 25, 1914, filed his report on the value of Mrs. Mulligan's inchoate right of dower. The property ordered to be sold, and the precedence in which it was to be sold under the judgment, was as designated by Mr. Mulligan.

There were five tracts included in a mortgage executed by Mr. Mulligan to the Transylvania University, in which mortgage Mrs. Mulligan had joined, releasing dower. Of these, Nos. 2, 3, and 4 were ordered to be sold, and were sold. The amount of that mortgage was $6,041.93 on the day of sale. The sale price of these properties was $13,550. Of the two tracts included in the mortgage to the Security Trust Company, No. 1 was ordered to be sold, but was not sold. The amount of that mortgage on the day of sale, not including the amount of proportionate costs, etc., was $7,709.15. There were also ordered to be sold five pieces of unmortgaged property, one of which we are unable to identify with any of the properties described in the trust deed. These five were all sold, and brought $15,045.

Under the judgment, as has been seen, Mrs. Mulligan was to have the cash value of her inchoate right of dower in the unmortgaged properties sold, and also in such sum as was derived from a sale of the mortgaged properties over and above the amount of the mortgages.

The commissioner reported that the mortgaged and unmortgaged properties sold realized the sum of $28,595; that the liens on the properties sold were as follows: Mortgage liens $13,565; judgment liens, $183.43; tax liens due city of Lexington, $5,855.85--which, including an allowance of $800 for probable costs, made a total of $18,641.72, leaving $9,953.28, in which sum Mrs. Mulligan is entitled to dower therein, which, according to the dower tables, would be $844.04. Mrs. Mulligan filed exceptions to this report, and the same were sustained. The court then referred the cause back to the commissioner for amended calculations, directing him not to deduct the amount of the tax liens in fixing the amount in which...