Terry v. Swinford

• Decision Date: 19 June 1897
• Citation: 41 S.W. 553
• Parties: TERRY et al. v. SWINFORD et al.
• Court: Kentucky Court of Appeals

41 S.W. 553

TERRY et al. v. SWINFORD et al.

Court of Appeals of Kentucky.

June 19, 1897

Appeal from circuit court, Livingston county.

"Not to be officially reported."

Action by Abner Swinford against J. B. Terry and others to have a mortgage declared to operate as an unlawful preference. Judgment in favor of J. M. Roney's executrix and others against J. B. & H. B. Terry on cross petition, and defendants J. B. & H. B. Terry appeal. Reversed.

Moore &amp Moore, Olie M. James, and James & James, for appellants.

GUFFY J.

Abner Swinford instituted an action in the Livingston circuit court against J. B. Terry et al. to obtain indemnity as security for J. B. & H. B. Terry, amounting to $600. It is substantially alleged in the petition that the Terrys had executed a mortgage to J. V. Hayden and others, with a view of preferring said Hayden to the plaintiff and other creditors, and in contemplation of insolvency, and asking that said mortgage be declared to operate as an assignment of all the property of said Terrys for the benefit of their creditors. The Terrys and various other defendants filed answers, denying that the mortgage was made in contemplation of insolvency; and several of the defendants made their answers cross petitions against the Terrys, asking judgment against them for the amounts of their several debts, and praying for an enforcement of their liens upon the property described in the mortgage. On September 7, 1894, on motion of plaintiff, his cause of action and the cross petition of John R. Davis were dismissed, settled, and Davis had leave to withdraw the exhibits filed by plaintiff. The appellants entered their appearance to the several cross petitions filed against them, but made no defense, and the cause was submitted upon the cross petitions of M. D. Roney, executrix of J. M. Roney, L. C. Hibbs, J. M. Davis, J. L. Hibbs, and J V. Hayden against the said J. B. & H. B. Terry, and judgment rendered against the said Terrys for the sums claimed in the several petitions; and judgment was also rendered enforcing the liens of the several cross petitioners upon the property described in the mortgage, and a sale of a sufficiency of the land to pay said claims, and the same was sold in January 1895, and purchased by appellees J. V. Hayden, J. L. Hibbs L. C. Hibbs, and J. M. Davis at the price of $4,720. The land had been appraised at the sum of $5,950. The report of sale was returned and filed April 15, 1895, to which the appellees filed numerous exceptions, numbered from 1 to 14, which were overruled by the court, and the sale confirmed; and from that judgment, and the judgment adjudging a sale of the land, appellants have appealed.

It is suggested by appellants that, inasmuch as the plaintiff, Swinford, had dismissed his cause of action, settled, before the rendition of the judgment complained of, the suit could not be further prosecuted in the name of Swinford, and the judgment is therefore erroneous; but it will be seen that the cross petitions of the other creditors had been filed before the dismissal of Swinford's petition, and they had a right to prosecute their claims to judgment, and the mere fact that the suit was continued to be styled ""Swinford v. Terry et al." cannot invalidate the judgment rendered in favor of the several cross petitioners.

After the sale the following exceptions were filed to the report of the commissioner's sale:

"'The defendants J. B. Terry and H. B. Terry now come and except to the report of the commissioner, John R. Sedberry, filed herein on the 15th day of April, 1895, and object to the confirmation of same by the court for the following reasons:

"First. Because said commissioner did not advertise said land, the sale of which is reported by him to be sold in the actions of Mrs. M. D. Roney, executrix of J. M. Roney, deceased, and L. C. Hibbs, and J. M. Davis, and J. L. Hibbs, and J. V. Hayden, in which it was ordered to be sold, but advertised same to be sold in the action of Abner Swinford against J. B. Terry and H. B. Terry, which action had been dismissed by Abner Swinford before the judgment directing the sale of said lands was rendered, and there being no judgment of Abner Swinford against the defendants J. B. & H. B. Terry in said court directing the sale of said lands, or any part of same, at the time of the advertisement and sale of said lands of defendants shown by said report; by reason of which the defendants J. B. Terry and H. B. Terry were injured and damaged in the fact that said lands, nor either tract of same, brought anything like its value, and said sale was and is void, and did not and cannot vest any title in the purchaser of same if confirmed by the court.

"Second. Because the commissioner, in his attempt to advertise said lands, did not follow either the judgment directing the sale or the law in such case made and provided, by reason of which said lands did not bring near their value, thereby resulting in great loss to the defendants.

"Third. Because said commissioner did not comply with the law of the case in the appointment of appraisers to appraise the said lands. The persons selected by him, K. W. Lay, J. B. Trail, and T. J. Lay, nor either of them, possessed the qualifications in such case required by law; not living near to or having any knowledge of said lands, or their value, having never gone over same, and not knowing the boundary lines of same, and had to and did rely on information of others for their valuation of lands, fixing same on eight tracts of land of about nine hundred acres at $5,950, which sold at said pretended sale at $4,720, when in truth and in fact said lands were reasonably worth $9,000, and which valuation would have been fixed by persons of that knowledge of said lands that the law contemplates that they should have in order to make them eligible as appraisers in such case, which would have secured to defendants the right of redemption of said lands, which is lost to them by the failure of said commissioner to comply with the same in this regard, and results in the sacrifice to defendants of the difference between

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