Swafford v. Howard

• Decision Date: 17 March 1899
• Parties: SWAFFORD et al. v. HOWARD et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 43

SWAFFORD et al. v. HOWARD et al. ^[1]

Court of Appeals of Kentucky.

March 17, 1899

Appeal from circuit court, Clay county.

"Not to be officially reported."

Action by A. B. Howard, curator of Levi Frederick, deceased, to settle the estate of the decedent. Judgment determining various issues, and W. T. Swafford and others appeal. Reversed.

Tinsley & Faulkner, for appellants.

Lyttle & Jeffries, for appellees.

PAYNTER J.

1. In the pleading tendered by the appellant Swafford it is averred that he owns part of one of the tracts of land which was sought to be subjected to the payment of certain demands of the creditors of Levi Frederick, deceased. To confirm the report of sale, and make a deed to the purchaser for the land claimed by Swafford, necessarily cast a cloud upon his title. If the averments of his pleadings be true,--and we must so consider them on his motion,--then he had such an interest in the land as made him a necessary party for the proper determination of the question involved. If he owned it, it is not liable to the payment of the demands for which it was sold. The court should have refused to confirm the report of sale as to the part of the tract claimed by him, and allowed him to file his pleading.

2. Jones and wife were made defendants to the action, but do not appear to have been served with process. The answer filed does not purport to be their answer. It simply says the "defendants, for answer," etc. But that language does not make it the answer of defendants who were not before the court. Mrs. Jones is an heir of the decedent, Frederick and was interested in the estate sought to be subjected to the payment of the demands of his creditors. The judgment was prematurely rendered, as to them, and does not conclude their rights. As they did not move to set aside the judgment, they are not entitled to maintain this appeal, but it will be dismissed without prejudice to their rights. There is nothing in the record which shows that they filed exceptions to the report of sale.

3. So far as this record shows, the commissioner did not err in reselling tract No. 3 because of the bid of W. R. Frederick. Frederick did not execute bond for the purchase money, and the commissioner had the right to use his discretion as to whether or not he would resell it, and it does not appear that he abused the discretion which he had the right to exercise. Head v. Clark, 88 Ky. 362, 11 S.W. 203; Wilson v. Thorne (Ky.) 13 S.W. 365; Hughes v Swope, 88 Ky. 254, 1 S.W. 394.

4. The appellant Dickinson complains because the court, in its final judgment, in distributing the fund arising from the sale of the property, gave a preference to Potter's claim. This claim of counsel is based upon the second judgment, which directed the master commissioner of the court to make a pro rata distribution of the fund. In making this claim, counsel overlooks the fact that the judgment allowing these...