Wiman v. First Christian Church of Mayfield

• Decision Date: 31 May 1938
• Citation: 273 Ky. 821,117 S.W.2d 989
• Parties: WIMAN et ux. v. FIRST CHRISTIAN CHURCH OF MAYFIELD et al.
• Court: Kentucky Court of Appeals

117 S.W.2d 989

273 Ky. 821

WIMAN et ux. v. FIRST CHRISTIAN CHURCH OF MAYFIELD et al.

Court of Appeals of Kentucky

May 31, 1938

Appeal from Circuit Court, Hickman County.

Suit by the First Christian Church of Mayfield and others against Vaughn L. Wiman and wife for the unpaid purchase price of land and for enforcement of a vendor's lien, wherein a counterclaim and a cross-petition were filed, and wherein the First National Bank of Mayfield, as administrator with will annexed of the estate of E. T. Lucas, was made a party. From an adverse judgment, Vaughn L. Wiman and wife appeal.

Reversed with directions.

Farland Robbins, of Mayfield, for appellants.

Webb &amp Webb, of Mayfield, for appellees.

BAIRD Justice.

This equity action was filed in the Hickman circuit court on December 16, 1936, by appellees and plaintiffs below, against appellants and defendants below, Vaughn L. Wiman and wife, to recover judgment for about $7400.00 due plaintiffs from defendants as the balance of the consideration that the latter agreed to pay the former for a tract of land in Hickman county, consisting of about 450 acres, and which plaintiff acquired by and through the will of E. T. Lucas deceased. After the Lucas will was probated, plaintiff, First Christian Church of Mayfield, through its trustees, sold the farm to defendant, Vaughn L. Wiman, the other defendant, Mabel Wiman, being his wife. A cash payment was made and a lien retained for the deferred payments, which were evidenced by notes, and the deed contained the right of precipitating the due date of the entire debt upon specified defalcations. Those defalcations happened, which was followed by the filing of this action to recover judgment for all of the unpaid purchase money with an enforcement of the vendor's lien upon the land, which was retained in the deed, to secure it.

At the February 1937 term of the court defendants demurred to the petition and without waiving it they filed their answer, counterclaim and cross petition, which was done on February 4, 1937. In their pleading they admitted the conveyance and the execution of the notes, as well as the existence of the precipitation right reserved in the deed. They then averred that the church at the time of the sale and conveyance of the land to defendant, Vaughn L. Wiman, possessed no title thereto, since under section 319 of our Statutes it was incapable of taking and holding, howsoever acquired, any land in excess of the quantities set forth in that section and for the purposes therein specified. The answer then denied any right in the church to take and hold any part of the land conveyed to defendant under that section, and averred that he obtained nothing from plaintiff by the conveyance. He then alleged his willingness to reconvey the land to plaintiff upon condition that it repay to him the amount of the purchase money that he had paid, with interest on the deferred payments. He then stated that on December 17, 1936--the next day after defendants filed their instant petition against him--Zula Spradlin et al. filed their action against him in the same court seeking to recover the land from him on the ground that he had no title and that they, as collateral heirs of Lucas, inherited the land from him, since his will was ineffective, for the reasons stated, to transfer the title to the First Christian Church, defendants' vendor, and that its deed to him, was likewise inefficacious for that purpose. He then averred that nine days after the filing of that petition against him, and on December 26, 1936, he served notice on plaintiff herein to appear in that case and defend his title, and he filed an executed note to that effect as a part of his defensive pleading. He then prayed for a rescission of the contract and for a recovery of the amount of purchase money he had paid together with interest, and for a cancellation of the unpaid note.

Following the filing of that pleading the court overruled defendant's demurrer to the petition, and on the same day plaintiffs offered and were permitted to file an amended petition making the First National Bank of Mayfield, as the administrator with will annexed of the will of Lucas, a party to the action and alleging the facts by which plaintiff acquired title to the conveyed tract of land. They then asked for the appointment of a special commissioner to execute deed to Vaughn L. Wiman, and that such commissioner be directed to do so after the appearance of the administrator in the cause. In that pleading it was averred that "the First National Bank, Mayfield, Kentucky, Trust Department, as Administrator with the will annexed of the deceased, E. T. Lucas, join herein in this petition and ratifies the sale made of said land and ask that such conveyance be made, conveying all right, title and interest of the said Lucas estate to the defendant in the said real estate." Following that clearly novel procedure the specially appointed commissioner executed and filed in the action a deed reconveying the tract of land to defendant, Vaughn L. Wiman. Then followed the filing of a general demurrer by plaintiff to defendants' answer, counterclaim and cross petition. The cause was then submitted to the court and it in effect sustained the demurrer filed to the defendants' answer, etc., and rendered judgment in accordance with the prayer of the petition--to reverse which defendants prosecute this appeal.

The court in rendering the judgment appealed from seems to have proceeded upon the theory (1) that plaintiff possessed a valid title under the will of E. T. Lucas at the time it made the conveyance of the land to defendant; but if mistaken in that, then plaintiff had not been evicted by paramount title at the time the judgment appealed...