Wickliffe's Ex'r v. Breckinridge's Heirs
| Citation | 64 Ky. 427 |
| Parties | Wickliffe's executor, & c., v. Breckinridge's heirs, & c. |
| Decision Date | 08 March 1866 |
| Court | Court of Appeals of Kentucky |
1. The purchaser of land, while a suit is pending to enforce a lien upon it in a court having jurisdiction, held to be a pendente lite purchaser, although the land was situated in another county.
2. To constitute a lis pendens as to strangers, there must be a process issued and served. (Lyle vs. Bradford, 7 Mon., 116.)
3. When the suit is in whole or in part in the nature of a proceeding in rem to recover or subject any specific property a sale of the subject of the litigation pending the suit will not change the rights of the parties to the suit, or the power of the court over the subject of the action. It is not necessary to make such purchaser a party to the suit--he takes the property cum onere. (Thomas vs Southard, 2 Dana, 480.
4. While the lis pendens may be lost by neglecting to prosecute, a reasonable excuse for the delay complained of is always available to keep up the lis pendens.
5. A party who pays a debt for which another has bound himself by a lien or mortgage on land, is substituted to the benefit of all the liens and securities thus created to secure the payment of that debt.
APPEAL FROM FAYETTE CIRCUIT COURT.
GEORGE ROBERTSON, for Appellants, S. S. Nicholas and R. Hawes.
R HAWES, For same parties,
CITED--
7 Mon., 56; Saunders' heirs vs. Morrison's ex'or, & c.
Brightly's Digest, p. 102, head, Virginia Land Warrants.
HARRISON & HUNT, For Henry Clay's executors,
CITED--
3 Dana, 68; Buford vs. Francisco.
Bouvier's Inst., 1 vol., 335, sec. 861.
10 B. Mon., 88; Dudley vs. Price's adm'r.
6 J. J. M., 229; Jeeter's adm'r vs. Durham, & c.
CHIEF JUSTICE PETERS and JUDGE ROBERTSON could not sit on the trial of this cause, and the Governor, pursuant to statute, appointed the Hon. A. J. JAMES and the Hon. G. W. CRADDOCK special judges in their stead. The court was composed of judges WILLIAMS, HARDIN, JAMES, and CRADDOCK.
This is an appeal prayed by Wickliffe, Nicholas' devisees, Beall's administrator, with the will annexed, Samuel Smith's trustees, Bank of the United States, and Luke Tiernan's administrator, from a decree of the Fayette circuit court, rendered against them at the February term, 1859, in favor of the complainants, the administrators and heirs of John Breckinridge, deceased, which decree orders the defendants, S. S. Nicholas and R. Hawes, two of the devisees of Col. Geo. Nicholas, deceased, to pay to the complainants the sum of five thousand one hundred and eleven dollars and seventy-six cents, and one half the complainants' costs of the suit; and also orders defendants Beall's administrator, with the will annexed, Thos. Dye Owings' representatives, and Robert Wickliffe, or some other of defendants, to pay complainants eight thousand and thirty-four dollars and seventy-one cents, with interest upon two thousand six hundred and fifty-one dollars and sixty-nine cents, from the date of the decree till paid, and one half the complainants' costs of suit, by the 1st day of the February term, 1859, which defendants failed to do; and thereupon, by way of enforcing a lien on the following property and estate, enough of it to pay said sums was ordered to be sold, viz: four thousand one hundred and fifty-five and one fourth acres of land, lying within three miles of the forge or furnace of the iron-works on Slate creek, formerly Clark county, Kentucky, being part of the patent to Nicholas and Breckinridge for nine thousand five hundred and thirty-one and one fourth acres, and eighteen forty-eighths of all the property belonging to the firm of John Cockey, Owings & Co., at the date of the mortgage now in existence; all the lands in which, at the date of the mortgage, Walter Beall had an interest, in conjunction with George Nicholas' representatives in the county of Montgomery, all the interest held by Walter Beall, at the date of said mortgage, in one thousand two hundred and fifty acres of land on the south side of Licking river, at the mouth of Slate creek, being part of two thousand five hundred acres entered in the name of Walker Daniel.
This decree was rendered in a suit in chancery, commenced in the Fayette circuit court on the 12th day of September, 1811, by the administrators and heirs of John Breckinridge against the executors of John Lee, the executors of George Nicholas, the executors and heirs of Walter Beall, and others.
This suit is based upon alleged violations of a contract made between John Lee, of the one part, and John Breckinridge and George Nicholas, of the other part, dated August 6, 1795, whereby Lee sold to Nicholas and Breckinridge one moiety of Jos. Blackwell's nineteen thousand and sixty-two and a half-acre entry in Clark county, Kentucky, at the price of ten pounds per one hundred acres for all that may prove to be of indisputable title; Nicholas and Breckinridge to give their legal services in investigating and clearing out the title; Lee to convey, and Breckinridge and Nicholas to pay the purchase money as soon as the title was ascertained to be clear.
Nicholas and Breckinridge soon afterwards procured a patent in their own names for the moiety of the Blackwell entry so purchased of Lee, for nine thousand five hundred and thirty-one and one fourth acres, being that part which lies at the southwardly end of the entry.
Nicholas died in 1799, and Breckinridge in 1806--the latter intestate, the former testate. Nicholas having made his will, appointing Jos. H. Daviess and James Morrison his executors, and devising to them all his estate, to hold and to sell upon the following trusts: his widow to have the use of the home place, & c., for life. Out of the proceeds of the residue his debts were to be paid, and what remained was to be divided among his children.
Nicholas' estate proved to be much in debt. The executors made sale of his landed interests, and realized but a very small sum for them; having first given Wilson C. Nicholas a mortgage on them to secure to him certain debts held by him against the testator, George.
These landed interests, including the interest of Nicholas (an undivided half) in 5,376 acres of the aforesaid tract of 9,531 1/4 acres, being the part thereof lying more than three miles from the forge or furnace of the United Iron Company on Slate creek, were sold at auction, and Wilson Cary Nicholas, a brother to George, bid them off at the sum of four hundred and fifty dollars. He sold the land last above named to T. D. Owings, who succeeded to the possession under his purchase from W. Cary Nicholas and from John Cockey Owings.
On the first of March, 1798, Breckinridge sold out his interest in the moiety of the Blackwell entry, which lies within three miles of the forge or furnace of the said ironworks, to Walter Beall and George Nicholas--they (Beall and Nicholas) agreeing to take the title as it was without warranty, and pay the persons from whom Nicholas and Breckinridge had purchased said lands the prices they had agreed to give.
On the 28th of July, 1802, Walter Beall made a mortgage to John Breckinridge, whereby he conveyed to him (Breckinridge) all his (Beall's) interest in the iron-works on Slate creek, carried on under the firm of John Cockey Owings & Co., which interests are eighteen forty-eighths in the iron-works, and the same in all other property belonging to the company; all the lands lying in Montgomery county in which he is concerned in interest with the heirs of George Nicholas; also, 1,250 acres south side Licking, at the mouth of Slate; part of 2,500 entered in the name of Walker Daniel, subject to a contract with Col. N. respecting the same, to indemnify and secure Breckinridge and his heirs in the full and perfect execution in all its parts of said contract of March 1 st, 1798, on the part of Beall and Nicholas.
On the 18th day of June, 1803, John Cockey Owings and Thos. Dye Owings made a mortgage to Walter Beall, reciting that they had given Beall divers notes, amounting in all to $44,500, being the consideration for the purchase they had made of Walter's interest in the iron-works on Slate (eighteen forty-eighths), and reciting that the Owingses had agreed to indemnify and save harmless the said Beall against certain undertakings, among which is " all and every demand which John Breckinridge may have against him, the said Beall, in consequence of a mortgage or other insurance given to the said Breckinridge to indemnify him as a member of the company; " conveying to the said Walter, for the purpose aforesaid, among other things, the same property purchased by them of Beall, and the same which Beall had before that mortgaged to Breckinridge to indemnify him (Breckinridge) against Lee's demand.
On the 13th and 14th days of June, 1803, a sale was made of all the interest of Walter Beall and John Cockey Owings, as survivors of the iron company, in the iron-works property, under an execution from the Lexington district court, directed to the sheriff of Montgomery, on a judgment in favor of David Williamson, at which sale Cuthbert Banks became the purchaser for the use and benefit of W. Cary Nicholas. This execution sale is recited in an agreement of sale dated the next day (15th of June, 1803) between W. Cary Nicholas and Thomas Dye Owings, whereby W. Cary Nicholas sold to Thomas Dye Owings by special quit-claim, all the iron-works property; " but the said Owings is, in either case, to pay to the said Nicholas whatever there may be now due of the consideration which Col. George Nicholas was bound to pay under his contracts for these lands, in proportion to the...
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Wickliffe's Executor, &C., v. Breckinridge's Heirs, &C.
......, between 1811 and the payment of Lee's damages, Wickliffe, while he was counsel for Breckinridges, and attorney for them in the defense of the Lee suit, caused these lands to be sold at execution ......