Penn v. Rhoades

• Decision Date: 28 February 1907
• Citation: 100 S.W. 288,124 Ky. 798
• Parties: PENN v. RHOADES ET AL.
• Court: Kentucky Court of Appeals

100 S.W. 288

124 Ky. 798

PENN v. RHOADES ET AL.

Court of Appeals of Kentucky.

February 28, 1907

Appeal from Circuit Court, Taylor County.

"To be officially reported."

Action by David Rhoades and others against John Penn.From a judgment in favor of plaintiffs, defendant appeals.Affirmed.

Hugh P Cooper, for appellant.

S. A Russell and L. Russell, for appellees.

NUNN J.

Walker Rhoades died in Taylor county, Ky. about the year 1863; he left surviving him his widow, Eliza, and seven children.Soon after his death the children, by proper proceedings, had his lands partitioned among them, except the home farm of 134 acres, which was allotted to the widow as dower.One Cox became his administrator, and administered the personal property, on finding that it was insufficient to pay all of the debts of the decedent, and, in the year 1865, instituted an action for the purpose of selling enough of the real estate to pay the balance of the debts, and the court rendered a judgment in the action directing the sale of the remainder interest in the homestead, and directed J. R Robinson, as commissioner, to make the sale, which he did, in 1867, at the price of $50, and made a report pretending that one J. N. Turner was the purchaser, who executed bond for the purchase money, with the commissioner, J. R. Robinson, as surety.That report was confirmed by the court, but no deed was ever made to Turner, or any one else.It appears that in 1873 J. R. Robinson sold the remainder interest to Rhoades' widow, then Gabehart, at the price of $110; she paid him $39 in cash, and gave her note for the balance, with a lien upon the land.Robinson transferred this note to one Hubbard, who afterwards instituted an action on it to enforce the lien; and another sale was made by one Mitchell, as commissioner, and at that sale J. R. Robinson became the purchaser, and he sold and transferred his bid to T. A Crouch, the husband of Virginia Rhoades, one of the children of Walker Rhoades, deceased, and the commissioner made Crouch a deed to the remainder interest.Afterwards, Crouch and wife sold and conveyed to appellant, Penn, this interest at the price of $175.Mrs. Gabehart, the widow of Walker Rhoades remained in possession of the land from the death of Rhoades to the year 1904, when she died.One of her daughters, Nancy L. Rhoades, resided with her during that time.After the death of their mother, the children and heirs took possession of the land, claiming ownership thereof, and soon afterwards brought this action under section 11 of the Kentucky Statutes, alleging that they were the owners of the land by descent from their father; that they were in the actual possession of it; made appellant, Penn, a defendant; and alleged that he was claiming some title or interest therein, which was casting a cloud upon their title, and asked the court to adjudge that his claim to the land was without right and of no effect.Appellant answered, denying appellee's title, and asserting title in himself, and that he derived it in the way and manner above stated.Realizing that J. R. Robinson had no title, and that the heirs of Rhoades had not been divested of the legal title thereto, he alleged in his answer as follows: "That said purchase-money bond was paid off to said Sharp, administrator as aforesaid, by said J. R. Robinson, security for said Turner on said bond, and said J. N. Turner transferred and assigned said purchase to said J. R. Robinson; the original assignment and transfer cannot now be found, and, in lieu thereof, said J. N. Turner has made a transfer and assignment of said purchase and showing that it was for said J. R. Robinson, and that he, Turner, has no interest or claim on said land, but assigns and transfers all of his said purchase to J. R. Robinson, and that the original sale and purchase by him was made for the use and benefit of said J. R. Robinson, which said assignment is filed herewith, marked 'J. N. T."'He filed with his answer the transfer and assignment by J. N. Turner, the reputed purchaser at the commissioner's sale, which reads as follows: "Whereas, in the action in equity pending in the Taylor circuit court of Cable Cox, administrator of Walker Rhoades, deceased, plaintiff, v. Eliza Gabehart, etc., defendants, the remaindder interest in the 134 1/2 acres of land that had been allotted as dower to said Eliza Gabehart was sold by the commissioner to J. N. Turner for the price of fifty ($50.00) dollars, for which amount said Turner, together with J. R. Robinson as his surety, executed bond to said commissioner, and by the judgment of said courtWilliam Sharp, as administrator of James G. Sharp, deceased, was adjudged the benefit of said bond, and entitled to collect same, and to credit same on the indebtedness of said estate to him as the administrator, and whereas the transfer of the purchase from J. N. Turner to said J. R. Robinson has...