Rudd v. Anderson

• Decision Date: 06 September 1890
• Citation: 14 S.W. 340
• Parties: RUDD et al. v. ANDERSON.
• Court: Kentucky Court of Appeals

14 S.W. 340

RUDD et al. v. ANDERSON.

Court of Appeals of Kentucky.

September 6, 1890

Appeal from circuit court, Daviess county.

"Not to be officially reported."

G. W Williams & Son, for appellants.

R. S Todd, for appellee.

LEWIS J.

There was devised to James C. Rudd, by his father, 100 acres of land in Daviess county, and a lot on Ann street, in the city of Owensboro, the language of the will in relation thereto being, in substance, as follows: "Said property, and product thereof, to be for my son's, James C. Rudd's use and benefit, for the support and maintenance of himself and wife and children during his life, and in no way or extent to be liable for his debts, and, at his death, to become the property equally of the children," etc. In December, 1870, James C. Rudd borrowed of T. S. & W. K Anderson $3,080, and executed his note for $3,500, the principal, payable January 1, 1874, and interest thereon payable January 1st of each year succeeding the date of the note. There was executed, at the same time, by James C. Rudd and wife, a mortgage on 23 acres of the land devised by the will of James Rudd, and on the Ann-Street lot to secure payment of the debt, it being in terms agreed that all rents thereafter arising from two houses erected on the lot, with the money so borrowed, should, as collected, be applied to pay, first, the annual interest on the note at the agreed rate, and the surplus, if any, towards paying off the principal. In 1879, W. V. Hagan, having, as alleged, an unsatisfied judgment against James C. Rudd, instituted an equitable action against him, T. S. Anderson, (who had become sole owner of the note mentioned,) and the wife and children of Rudd, for the purpose of subjecting the 23 acres to pay his debt; and one of the issues involved, upon the decision of which the lower court seemed to be of opinion the relief sought depended, was whether the note given to Anderson in 1870 had been satisfied. To determine that fact, an order of reference was made to the master commissioner, who, January 5, 1885, reported that on September 1, 1883, the note had, according to a calculation filed with the report, been overpaid by the sum of $156.77; and January 17, 1885, a judgment was rendered, in effect, that T. S. Anderson had no lien on the 23-acre tract, his debt having been satisfied, and for a sale of it to satisfy the judgment of the plaintiff Hagan. But, upon appeal by the children of James C. Rudd, that judgment was reversed by this court, it having decided that the property was devised to James C. for life, with the rents and issues in trust, for the support of himself and his wife and children, to be apportioned between members of the family as they may increase or diminish, by reason of birth or death of a child, and that the property could not be sold absolutely, nor any more than his share of the rents and profits applied to pay his debts. See Rudd v. Van der Hagan, 5 S.W. Rep. 416. Though appellee, Anderson, in 1880, filed an answer to the petition of Hagan, in which he alleged there was a balance of about $2,900 of the mortgage debt then due and unpaid, and the infant children of James C. Rudd, by their guardian ad litem, filed, in 1882, an answer to the cross-petition of Anderson, there was not, until April, 1885, any issue presented between the parties to this appeal; for, in their answer of 1882, the infant children, by guardian ad litem, simply asked protection of the court, and investigation of the matters set out in Anderson's cross-petition. Consequently, the questions now before us are not controlled by the judgment rendered in favor of Hagan further than that it was thereby determined the mortgage debt had previously been satisfied; nor does appellee now claim any part of it is unpaid, for he does not pray a cross-appeal, though the judgment, of which appellants complain, is against him for an amount assumed to have been...