Noel v. Fitzpatrick

• Decision Date: 28 February 1907
• Citation: 100 S.W. 321,124 Ky. 787
• Parties: NOEL v. FITZPATRICK.
• Court: Kentucky Court of Appeals

100 S.W. 321

124 Ky. 787

NOEL v. FITZPATRICK.

Court of Appeals of Kentucky.

February 28, 1907

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Suit by Eva Fitzpatrick, by her next friend, J. K. P. South, against S. M. Noel, to cancel a commissioner's deed issued to Thomas Y. Fitzpatrick. From a decree in favor of complainant defendant appeals. Reversed and remanded.

B. G Williams, for appellant.

Jno. W Ray, for appellee.

LASSING J.

In 1897 M. E. Trimble, trustee for Narcissa Fitzpatrick, brought suit against J. H. Bowen and others to foreclose a mortgage for the purpose of collecting $2,387.35, with interest from December 15, 1883. There was at the same time a prior lien upon the property sought to be sold adjudged to John A. Lewis for $2,250, with interest from November 15, 1894, and other inferior liens adjudged to M. E. Trimble, trustee. In due course of time a judgment was rendered directing the property to be sold by the master commissioner. At the commissioner's sale Thomas Y. Fitzpatrick bought the property, and announced at the time that he did so that his wife, Narcissa Fitzpatrick, was the bidder. A sale bond was prepared, and Fitzpatrick signed his wife's name by himself as attorney, and signed his own name thereunder as security for her. The sale was in due time confirmed. After confirmation Mrs. Fitzpatrick, by a writing, recited the fact that her husband, Thomas Y. Fitzpatrick, had paid the purchase price, and requested the court to make an order for a deed to be made to him. This writing was filed in the court, and thereafter the court by an order directed the master commissioner to convey the land to Thomas Y Fitzpatrick, which was done. Shortly thereafter Fitzpatrick and his wife executed a mortgage on this land to the Safety Vault & Trust Company, of Frankfort, for the purpose of raising money thereon. The indorsement on the bond shows that Fitzpatrick paid to the master commissioner the Lewis debt in two checks, one for $1,325, and the other for $1,350.52. There is no evidence showing that that portion of the debt which was going to M. E. Trimble as trustee for Narcissa Fitzpatrick was paid at all. Narcissa Fitzpatrick died some time in 1900, and in 1904 Eva Fitzpatrick, daughter of Narcissa and Thomas Y. Fitzpatrick, by her next friend, J. K. P. South, filed her suit in the Franklin circuit court to cancel the deed from the master commissioner to her father, on the ground that the allegation in the assignment which her mother made to her father was false, in so far as it recited that the purchase price for the land had been paid by Thomas Y. Fitzpatrick. The petition further alleged that the assignment was obtained by reason of the confidential relation which existed between her father and mother as husband and wife; that her mother had no power or authority in law to execute such writing, and that the same when executed was void; that there was no consideration for the assignment, and that it was procured by fraud, and that her father concealed his true intent and purpose in procuring it; and that the deed executed in pursuance of the order of court directing it to be made to her father under said assignment was void. The first paragraph of the answer is a traverse. In the second paragraph Thomas Y. Fitzpatrick alleged that he was the actual purchaser of the land; that he had it cried down to his wife, who was not present, as the purchaser merely for convenience, and in order that he might become surety in the bonds.

He denied that his wife paid any part of the purchase price, or caused any part thereof to be paid, and averred that he prepared the assignment from his wife to himself, and that after she had executed it he presented the assignment in court, in order that he might have the deed made to himself as the real purchaser. A demurrer was filed to the second paragraph of this answer and sustained. Pending the litigation Eva Fitzpatrick reached her majority, and, this fact being made known to the court by proper proceeding, an order was entered directing that the suit proceed and be prosecuted by her in her own proper person, which was done. After the institution of the suit S. M. Noel, appellant here, purchased of Thomas Y. Fitzpatrick the farm in controversy for $8,000, $3,000 of which was paid in cash to said Fitzpatrick, and an obligation entered into by and between Noel and Fitzpatrick reciting that the remaining $5,000 was to be paid upon the settlement of the litigation. S. M. Noel, who by his purchase had succeeded to the rights and interest of Fitzpatrick in the land, filed his suit to be made a party. This was done, and his answer was taken as a cross-petition against the plaintiff, Eva Fitzpatrick. Noel adopted all the allegations of the answer of Thomas Y. Fitzpatrick. Shortly after this Fitzpatrick died. Issue having been joined, proof was taken, and upon final hearing the trial court adjudged that "the assignment from Narcissa Fitzpatrick to T. Y. Fitzpatrick, her husband, dated January 28, 1898, of her purchase of the land in contest, and described in the petition herein, that had theretofore been sold by the court's commissioner in the consolidated action of Crutcher & Starks, etc., v. J. H. Bowen, and the report of sale being made to Narcissa Fitzpatrick, purchaser, had been confirmed, was and is void, and conveyed to the said T. Y. Fitzpatrick, husband, no interest, right, or title in the lands so sold; and further adjudges that the deed executed by the commissioner under orders of the court in the case of Crutcher & Starks and others against J. H. Bowen and others to T. Y. Fitzpatrick, dated January 28, 1898, was and is void and of no force and effect, because the same was obtained by virtue of the assignment from Narcissa Fitzpatrick to her husband, T. Y. Fitzpatrick." And the court thereupon set aside and canceled and held for naught the deed from the master commissioner to Thomas Y. Fitzpatrick, and directed the commissioner to make a deed to Narcissa Fitzpatrick, effective as of the date of the deed to Thomas Y. Fitzpatrick, for the land sold and confirmed to her, and adjudged to plaintiff her costs. Thereafter the master commissioner, W. H. Posey, executed in due form a deed conveying the land to Narcissa Fitzpatrick as directed. From the correctness of the court's ruling and judgment, the defendant, Noel, prosecutes this appeal.

Two questions are raised for determination upon this appeal: First, should the demurrer have been sustained to the second paragraph of defendant's answer? and, second, was the assignment of her bid and purchase by Narcissa Fitzpatrick to her husband void?

We will first consider the ruling of the court on the demurrer. The allegation of the second paragraph is that Thomas Y Fitzpatrick was the real purchaser at the sale, although the sale was reported as having...