Northern Bank v. Hunt's Heirs

• Citation: 93 Ky. 67,19 S.W. 3
• Parties: Northern Bank of Kentucky et al. v. Hunt's Heirs et al.
• Decision Date: 24 March 1892
• Court: Kentucky Court of Appeals

19 S.W. 3

93 Ky. 67

Northern Bank of Kentucky et al. v. Hunt's Heirs et al.

Court of Appeals of Kentucky.

March 24, 1892

Appeal from Louisville chancery court.

"To be officially reported."

Action by T H. Hunt's heirs and others against the Northern Bank of Kentucky and others to have a sale of land under an attachment declared invalid, on the ground that the attachment was void. Judgments for plaintiffs. Defendants appeal. Reversed.

PRYOR J.

In the year 1861, T H. Hunt and Richard Curd were merchants in the city of Louisville, under the firm name of T H. Hunt & Co. The partnership had been formed prior to that time. In the conduct of their business they drew bills of exchange on planters in the southern states that were accepted, and then discounted by the firm with the Northern Bank of Kentucky. The bills were presented at maturity, and protested for non-payment. Before the maturity of the paper T H. Hunt, one of the members of the firm, went into the Confederate army and when the war terminated took up his residence in New Orleans, where he lived until his death. The other partner Richard Curd, left the state, and made his domicile in Liverpool, England, where he lived until his death. After the paper matured, the bank proceeded to make the firm liable as indorsers of the paper by a proceeding in the Louisville chancery court, obtaining attachments that were levied on the real estate in controversy, and sold as the property of the firm, in satisfaction of these debts. The bank purchased the property in the year 1863, at the sale ordered by the court by virtue of the attachments, the sale was confirmed, and a deed made divesting the partners of all title if the sale was valid. In the year 1883, T H. Hunt instituted the present action in the court be low, in which it is contended that the attachment was void, and therefore the sale under it passed no title. Hunt having died, the action was reviewed in the name of his heirs, and, Curd being dead, his heirs were also made parties. The title to the real estate levied on was in Richard Curd, as appears of record, but the facts show that it was partnership property, purchased with partnership means and for partnership purposes. The bank sold this realty after its purchase to its co-appellants, or their vendors, and they, relying on the bank's warranty of title, brought the latter before the court, in order that the latter might be held responsible on its warranty, in the event the title proved defective. It is plain that neither the heirs nor devisees of Hunt and Curd would have any interest in this realty until the payment of the debts due by the firm, if no proceeding had been instituted by the bank. The title would pass to them at law, subject to the lien of the creditors, through the partners, for the payment of the partnership debts. No innocent purchaser has intervened, and the only question presented, or necessary to be considered is, was the attachment valid? The appellees insist that the attachment was void. There were in fact two attachments there being two suits,-one of the actions against T. H. Hunt and R. A. Curd, and the other against T H. Hunt & Co. The summons or process in each case was in the usual form, signed by the clerk, and upon each process was indorsed the order of attachment. Warning orders were properly made, but no personal service had, as both of the partners were then out of the state. The process in each case, commanding the parties to appear and answer, is in the name of the commonwealth of Kentucky, but the order of attachment indorsed on the back of the summons, unless it relates to the summons and is a part of it, does not issue in the name of the commonwealth of Kentucky, but reads. "The marshal is directed to attach and safely keep the property of the defendants T H. Hunt & Co., not exempt from execution, sufficient to satisfy plaintiffs' claim, amounting," etc. The summons upon which this attachment is indorsed reads: "The commonwealth of Kentucky. To the marshal of the Louisville chancery court, greeting: We command you to summon Thos. H. Hunt and R. A. Curd to answer a petition exhibited against them in our Louisville chancery court by the Nor. Bank of Kentucky, 17,954, and warn them," etc. The proper affidavits were made and bonds executed in obtaining the attachments, warning orders were made on the records of the court, attorneys appointed to correspond, and report filed, etc. The proceedings were all regular, and we perceive no reason why the firm was not divested of all title. It was the property of the firm that was sold for a firm indebtedness. It appears from the pleadings and the testimony in the case that the manner of issuing the attachments in this case was in pursuance of a practice sanctioned by the...