Roberts v. Cardwell

• Decision Date: 17 June 1913
• Citation: 154 Ky. 483,157 S.W. 711
• Parties: ROBERTS v. CARDWELL.
• Court: Kentucky Court of Appeals

157 S.W. 711

154 Ky. 483

ROBERTS v. CARDWELL.

Court of Appeals of Kentucky.

June 17, 1913

Appeal from Circuit Court, Breathitt County.

Action by J. W. Cardwell against S. S. Roberts. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

G. W Fleenor and Martin T. Kelly, both of Jackson, for appellant.

McGuire & McGuire and Adams & Holliday, all of Jackson, and Hazelrigg & Hazelrigg, of Frankfort, for appellee.

CLAY C.

In October, 1886, William Smith died intestate in Breathitt county, Ky. leaving surviving him his widow, Nancy, and one son, George Smith. In July, 1887, John W. Cardwell, a creditor of the decedent, brought suit in the Breathitt circuit court to settle his estate. In this action he alleged that the decedent did not leave sufficient personal property to pay his debts, and he asked that a certain described piece of real estate be sold for that purpose. In 1889 Charles J. Little filed his petition in the action, asking that he be made a party, and that his petition be taken as his answer and cross-petition. In his petition he alleged that in July, 1887, more than six months after the death of William Smith, one Harry Baldwin for a good and valuable consideration paid to Nancy Smith and George Smith, purchased from them the tract of land described in the petition, and on that day the same was conveyed to plaintiff by deed. In August, 1888, plaintiff sold and conveyed the land to him, and in 1889 Nancy and George Smith conveyed it to him. Immediately after the purchase, he took possession of the land, and was in possession at the time he filed his petition. He prayed that the petition be dismissed and that he be adjudged the owner of the land. In 1888, and prior to the filing of the petition by Little, an order was entered referring the case to the master commissioner to report claims. The commissioner filed two reports during that year. In his last report he stated that there were no funds in the hands of the administrator, and that it was necessary to sell the real estate of the decedent to pay his debts. In 1889 the reports of claims, excepting two small items, were confirmed. In 1891 the action was submitted and a judgment entered directing the commissioner to sell the land mentioned in the petition for the purpose of paying the debts due by the estate. In 1894 the commissioner filed his report of sale, reciting that the real estate was sold to W. T. Hogg for $418. On the 13th day of September, 1892, it appearing to the satisfaction of the court that the papers in the case were lost, the case was referred to the master commissioner to supply same. On March 17, 1894, a similar order was again entered. In March, 1896, Cardwell made a motion to confirm the commissioner's report of sale. In 1896 C.J. Little filed his petition to be made a party defendant, and plaintiff excepted. On November 17, 1898, Emily Crane, executrix of W. T. Hogg, assigned the bid of W. T. Hogg to J. W. Cardwell. On November 23, 1899, plaintiff made a motion to have the commissioner's report of sale confirmed. On June 21, 1900, the case was referred to the master commissioner for the purpose of supplying the lost papers. On November 9, 1900, the commissioner filed his report supplying certain pleadings and papers in the case. On November 2, 1900, C.J. Little filed a substituted petition, and asked that it be taken for the original petition filed by him, and be treated as his answer to plaintiff's petition. In June, 1909, Little filed exceptions to the commissioner's report of sale. Thereafter, at the same term, the case was submitted on Cardwell's motion to have the sale confirmed and a deed made, and upon the exceptions filed by Little to the report of sale. The judgment recited that the court "finds that said Little's petition to be made a party was filed on the 4th day of January, 1899, setting up claim to the land described in the petition, and that the judgment ordering said sale was made at the September term, 1891. He further finds that the matters and things claimed by said Little were settled by said judgment." The court further overruled Little's exceptions to the commissioner's report of sale, and entered an order confirming the sale and directing a deed to be made to the assignee of the purchaser. Thereupon C.J. Little prosecuted an appeal to this court, where it was held that the judgment of sale of 1891 was a final, adverse, and appealable determination of the claim of title to the land asserted in his pleading. It was further held that, as Little had not appealed from that judgment in time, his appeal should be dismissed. Little v. Cardwell et al., 122 S.W. 799.

On June 26, 1911, plaintiff, J. W. Cardwell, alleging that he was the owner of a certain described tract of land and in possession thereof, brought this action against S. S. Roberts to enjoin him from trespassing thereon. Roberts filed an answer denying plaintiff's title to the land, and pleading title in himself by adverse possession. Thereupon plaintiff filed a reply setting up all the proceedings in the action of John W. Cardwell v. George W. Smith, Administrator, etc. He further pleaded that C.J. Little was a pendente lite purchaser of the land sold in that action, and that the defendant, Roberts, claimed title under and by virtue of a purchase from said Little during the pendency of the action; that both Little and the defendant, Roberts, purchased with a knowledge of the pendency of the action; that Little was a party to that action and Roberts was a privy of the said Little, and that both were bound by the judgment, orders, and decrees entered in that suit, and estopped from setting up any claim to the land to the contrary. The reply also alleges that in the year 19*** a writ of possession was placed in the hands of the sheriff of Breathitt county to be executed, and while the same was alive and in full force and effect said writ was duly executed upon defendant, and he was dispossessed of said property, and plaintiff was put in possession thereof by said sheriff. Thereupon defendant, Roberts, filed a rejoinder, in which he denied the allegations of the reply, including many allegations shown by the record in the case of J. W. Cardwell v. George Smith, Adm'r, etc. In another paragraph he alleged facts going to show that the judgment of 1891 was fraudulently obtained, and that all of the further orders and judgments entered thereafter were also obtained by the fraud of the plaintiff, Cardwell. He further pleaded laches on the part of said Cardwell in the prosecution of this suit, and set up his claim to the land by adverse possession.

It will be observed that the action pleaded in bar of defendant's right of recovery was brought prior to the enactment of the act of 1896, requiring the...