Stevens v. Deering

• Decision Date: 29 September 1888
• Citation: 9 S.W. 292
• Parties: STEVENS et al. v. DEERING et al.
• Court: Kentucky Court of Appeals

9 S.W. 292

STEVENS et al. v. DEERING et al.

Court of Appeals of Kentucky.

September 29, 1888

Appeal from circuit court, Fayette county.

Geo Denny, for appellants.

D. G Falconer, for appellees.

LEWIS C.J.

In 1878 W M. Wilson instituted in the Fayette court of common pleas an action ordinary, and recovered judgment on a promissory note for $56, executed March 1, 1876, by Sarah F Stevens and Matthew Stevens, and bearing interest at the rate of 8 per cent. from date. April, 1879, an execution was issued on the judgment, and, as appears from an indorsement thereon, was levied upon the interest of Sarah Stevens in a tract of land and August, 1880, under an exponas, said interest appraised at $765, was sold, the plaintiff becoming the purchaser at the sum of $54.29; being, as stated in the return of the officer, amount of debt, interest, and cost. March 16, 1883, a deed was executed by the sheriff for the interest so sold to Eliza R. Wilson, widow and devisee of W. M. Wilson, then dead; and March 9, 1885, Eliza R. Wilson conveyed it to R. H. Wilson, who on the same day mortgaged it to appellees William Deering & Co., to secure payment of a debt for $950. March 20, 1887, William Deering & Co. instituted this action in the Fayette circuit court against the mortgagor and the other parties owning undivided interests in the land, asking judgment dividing the land, and subjecting the alleged interest of R. H. Wilson in right of Mrs. Stevens to the payment of the plaintiff's mortgage debt; and May 20, 1887, Sarah F. Stevens and Matthew Stevens tendered their petition, and moved the court to make them parties to the action, and the court permitted it filed. But subsequently, May 21, 1887, the court sustained a motion of the plaintiffs to strike from the record and dismiss the petition, from which order this appeal is prosecuted. The ground upon which the right to file the petition and to contest the right of plaintiffs to subject the said interest in the land, as alleged, is that at the date of the note upon which suit was instituted by W.M. Wilson in 1878, at the date of the judgment in his favor, Sarah F. Stevens was and has ever since been a married woman, and that consequently the note was as to her a nullity, and the judgment and all the proceedings under it are void.

Treating the motion to strike from the record and to dismiss the petition of Sarah F. and Matthew Stevens as equivalent to a general ...