Russell v. Centers

• Decision Date: 30 April 1913
• Citation: 155 S.W. 1149,153 Ky. 469
• Parties: RUSSELL et al. v. CENTERS et al.
• Court: Kentucky Court of Appeals

155 S.W. 1149

153 Ky. 469

RUSSELL et al. v. CENTERS et al.

Court of Appeals of Kentucky.

April 30, 1913

Appeal from Circuit Court, Breathitt County.

Action by Orlena Russell and another against Harvey Centers and others. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

G. W Fleenor, of Jackson, for appellants.

J. J C. Bach and Grannis Bach, both of Jackson, for appellees.

SETTLE J.

On September 5, 1904, the appellees Hiram Centers and Sarah Ann Centers, his wife, borrowed of the appellants Orlena Russell and William Russell, her husband, $300 to be repaid one year thereafter with 6 per cent. interest from the date of the borrowing until paid. The borrowers did not execute a note for the $300, but at the time it was obtained executed to appellants as security for its payment a mortgage upon a house and lot in the city of Jackson owned by Hiram Centers. The mortgage was duly acknowledged by the mortgagors, and immediately thereafter recorded in the office of the clerk of the Breathitt county court. On March 27, 1905, the appellee Hiram Centers paid appellants $150 on the debt secured by the mortgage, and on July 7, 1905, made a further payment thereon of $50. When the last payment was made, the appellee Hiram Centers, who was at the time intoxicated, insisted upon giving the appellant William Russell, to whom the money was handed, a memorandum or duebill showing the balance due on the debt. This paper was written by Crain a merchant in whose store the $50 was paid, and by mistake on his part was executed to the appellant Orlena Russell alone. The writing is as follows: "Due Orlena Russell $100.00, One Hundred Dollars, balance on mortgage. Hiram Centers--March 27th 1906." It is admitted by the parties and draftsman that the date "March 27th, 1906," in the above writing is a mistake, and that the true date of its execution was July 7, 1905, though it did not when delivered to William Russell bear any date, and also admitted by the latter that he inadvertently dated it March 27, 1906, when he, on that date, submitted it to the inspection of L. Y. Redwine. No other payment was made on the debt by the mortgagors, and on July 5, 1910, appellants brought suit in the Breathitt circuit court for the amount of the debt secured by the mortgage, subject to the credits of $150, paid March 27, 1905, and $50 paid July 7, 1905, and for the enforcement of the mortgage lien. As the appellees, Hiram Centers and Sarah Ann Centers, after the institution of appellants' action, by deed conveyed the mortgaged premises to their children, Alex, Henry, and Lucile Centers, the first a nonresident of the state and the last two infants, reserving to themselves a life estate therein, these remaindermen were joined with their parents as defendants to the action, and an attorney was appointed for the nonresident and guardian ad litem for the infants. No resistance was offered by any of the defendants to appellants obtaining the relief prayed in the petition, and upon a submission of the case judgment was rendered in their favor against Hiram Centers and Sarah Ann Centers for their debt and interest, subject to the credits mentioned; also for their costs and the enforcement of their mortgage lien in satisfaction of the mortgage debt. The real estate covered by the mortgage was sold by the court's commissioner as directed by the judgment, and appellants, being the highest and best bidders, became the purchasers at the amount of their debt and cost. The sale was reported to the court; but before its confirmation the court, on the motion of some of the appellees, set it aside on the ground that it and the judgment were both invalid, because no report had been filed by the attorney for the nonresident, Alex Centers.

The record is indefinite as to whether the judgment was set aside as to the appellees Hiram and Sarah Ann Centers, but leaves no doubt of its having been set aside as to the remaindermen. We will, however, treat it as having also been vacated as to them. After this action was taken, appellants filed an amended petition which made L. Y. Redwine, Cora Beauris, and Harvey Beauris defendants to the action, it being alleged that after the institution of their action the nonresident Alex Centers, sold and by deed conveyed to the appellee L. Y. Redwine his undivided one-third interest in remainder in the...