Keller v. Stanley
4 S.W. 807
June 7, 1887.
Appeal from Louisville law and equity court.
ACTION: Affirmed

By will, executed and admitted to record in the state of Mississippi in 1843, and subsequently recorded also in the clerk's office of the Jefferson county court, William Cotton devised to Mary Bryant for life, and at her death to her children, the lot of land in controversy, situated in the city of Louisville. April 10, 1847, Mary Bryant, her husband uniting with her in the deed, conveyed her interest in the lot to Henning, who in November, 1847, conveyed the same to Delph; and March 10, 1856, the latter conveyed the same interest to Michael Fillion, there being the following recital in the deed made to him: "The estate hereby conveyed being an estate for life of Mary Bryant, and no more, (see Will-Book No. 3, p. 357, Cotton to Bryant; and Deed-Book 68, Bryant and wife to Henning; and Book 69, Henning to Delph.)" February, 1863, Fillion instituted an action in the Louisville chancery court against the unknown children of Mary Bryant and Charles Bryant, her husband, asking judgment for a debt set up by him against them, and for the enforcement of an alleged lien on the lot to satisfy it. In his petition he stated the lot in question had been devised by William Cotton in the manner mentioned; that he had paid for Mary Bryant and her children, at her request, $------, state and city taxes thereon, and for curbing and paving in front of it, whereby a lien was created; but concealed from the court the fact he was the owner of the life-estate therein, and his own consequent liability for the taxes and assessments. Upon the ground the defendants were then non-residents of the state, and could not be summoned to answer, an attachment was issued and levied upon the lot, and June 26, 1863, judgment was rendered in that action for the sale of the whole estate therein, as well the interest of the plaintiff himself, though not so recited, as of the children of Mary Bryant, in order to satisfy his alleged debt and costs of the action. And the sale having, in pursuance of that judgment, been made, was, October 16, 1863, confirmed, and the commissioner's deed directed to be made to the plaintiff, who was the purchaser. But it appears by the record of that case that April 17, 1864, there was the following proceeding: "Came the defendants, Charles and Mary Bryant, Mary B., Sarah A., and John W. Bryant, by counsel, and filed their answer herein, with notice executed on the plaintiff, and said defendants moved the court to retry this case." It further appears that April 20, 1864, the defendants executed and filed the bond for costs required in such cases.

With the answer mentioned they filed written evidence of title, and the several conveyances by which the plaintiff had become, or was in 1856, before the taxes and assessments mentioned in the petition accrued, the owner of a life-estate in the lot. They denied in the answer they were liable as owners of the interest in remainder for such taxes and assessments, or that the plaintiff was requested by Mary Bryant to pay taxes therefor, and prayed for judgment in their favor, and all proper relief. April 22, 1870, final judgment was rendered in that action, setting aside the judgment of 1863, and the sale made thereunder, and dismissing the petition of the plaintiff Fillion. This action was instituted August 22, 1883, by Mary Stanley and others, children of Mary Bryant, and devisees of the will of William Cotton, against I. H. Keller and wife and L. V. Keller. In their petition, the plaintiffs, after reciting the history of their title to the lot, and of the action of Michael Fillion against them, allege that the judgment rendered in that action in 1863 was fraudulently obtained by him; that July 18, 1864, he attempted to convey the entire estate in the lot to one Bensinger, and the latter, September 25, 1864, attempted to convey the same to L. V. Keller, who with her husband claims she is the owner in fee thereof, and holds the lot adversely to the plaintiffs, whereby there exists a cloud upon their title, and the market value of their estate in the lot is impaired. The relief prayed for in the petition is that the deed from Fillion to Bensinger, and the one from him to the defendant L. V. Keller, be set aside and held for naught so far as either of them purport to convey an estate in the lot greater than for the life of Mary Bryant; that the plaintiffs be adjudged the owners thereof, subject only to such life-estate, and that their title be quieted. And the final judgment of the lower court was that the plaintiffs are the owners of the remainder in fee of the lot; that the deeds mentioned operated to invest the defendant L. V. Keller with only such life- estate, and that the judgment of 1863 in favor of Michael Fillion, and sale under it, are void, and divested the plaintiffs of no interest. Keller and wife having appealed from that judgment, we will now consider the several grounds relied on for reversal.

1. As appellant claims under the will of William Cotton, it does not seem to us she is in a position to call in question its validity, or deny that it has been in due form of law probated and admitted to record in this state.

2. Nor can she defeat the action upon the ground the lot in controversy is not sufficiently identified; for not only is it described in the deed from Delph to Fillion, but also in the action the latter instituted against the present appellees.

3. We do not deem it necessary to determine whether the judgment of 1863 was fraudulently obtained by Fillion, the plaintiff in that action, nor whether the court had jurisdiction to render it; for both these questions were finally and effectually disposed of by the judgment rendered in 1870 upon the retrial of the action. And the first of the two principal questions arising on this appeal is what effect that judgment had upon the claim of the appellants. By section 445 of the former, substantially the same as section 414 of the present, Civil Code, it is provided that "where a judgment has been rendered against a defendant or defendants constructively summoned, and who did not appear, such defendants, or any one or more of them, may, at any time within five years after the rendition of the judgment, appear in court, and move to have the action retried; and, security for the costs being given, they shall be admitted to make defense, and thereupon the action shall be retried, as to such defendants, as if there had been no judgment, and upon the new trial the court may confirm the former judgment, or may modify or set it aside; may order the plaintiff to restore any property of the defendant obtained by the plaintiff under it, and yet remaining in his possession." Section 448, corresponding to section 417 of the present Code, is as follows: "The title of the purchaser in good faith to any property sold under an attachment or judgment shall not be affected by the new trial permitted by section 445, except the title of property obtained by the plaintiff, and not bought of him in good faith by others."

As the defendants in the action instituted by Fillion, being only constructively summoned, did appear in court within five years after the rendition of judgment for sale of the lot, moved to have the action retried, and gave bond for costs, it is obvious that Fillion, if he had not previously sold to Bensinger, would have been divested, by the judgment of 1870, of whatever title or interest he acquired under the judgment of 1863. But the effect of the judgment of 1870 upon the title of appellant L. V. Keller depends upon whether Bensinger bought of Fillion in "good faith," by which term, as judicially interpreted, is meant a purchase made, not merely for consideration, but also without notice to the purchaser of an adverse claim to the property by others; for, as said by this court in Hardin v. Harrington, 11 Bush, 367, quoting Lord HARDWICKE, "the taking of an estate after notice of a prior right makes one a mala fide purchaser;" and, as held in the same case, constructive as well as actual notice will affect a purchaser. Hence a purchaser pendente lite is always treated as one with notice. Owings v. Myers, 3 Bibb, 278. In Hawes v. Orr, 10 Bush, 431, it was said: "It is a well-settled rule of law that a party purchasing property which is the subject of litigation takes it subject to the judgment that may be rendered in the case. This rule is one of necessity, for otherwise a party might be defeated in the pursuit of his legal rights by repeated alienations by the person in wrongful possession of the property sued for. But, in order to bind the purchaser by a judgment rendered in the case to which he was not a party, a judgment must be the result of litigation pending at the time of the purchase, and not of a new litigation commenced afterwards."

The simple inquiry, then, is whether, at the time Bensinger bought the lot from Fillion, it was the subject of litigation pending between the latter and appellees. If so, both he and appellant L. V. Keller are bound by the judgment of 1870, though neither of them was a party to the litigation; for, if the purchase by Bensinger was made pending the litigation, that by appellant, being subsequent, was also. The record in the case of Fillion against the appellees shows that everything required by section 445 to be done by defendants constructively summoned in order to have the action against them retried, was done by appellees in April, 1864, and thereafter, until the judgment of 1870 was rendered, the litigation, for every purpose contemplated by the Code, was pending between the parties to the action. It is true, there is in the record before us what purports to be a notice to the plaintiff by the defendants in that action, executed April 14, 1868, that they would, on next motion-day, move to have the action retried; but in the proceedings of April 17, 1864, before mentioned, it is recited that the defendants then filed their answer, with notice executed on the plaintiff, and moved for a retrial of the action, and three days thereafter executed bond for costs. The subsequent notice, therefore, even if given, was not necessary, nor does it prove the litigation was not already pending. The formal prayer in the answer to set aside the judgment of 1863, and sale under it, and to restore the property to the defendants, and divest the plaintiff of the title thereto, was not necessary in order to put the lot in litigation; for when it appears to the court, upon the retrial of such an action, that the plaintiff had no cause of action against the defendants, the judgment restoring the property to the defendants, and divesting the plaintiff of the title thereto, thus wrongfully acquired, necessarily follows, unless bought of him in good faith by others. As, therefore, the purchase by Bensinger was not made until July, 1864, nor that by appellant L. V. Keller until September, 1864, we think they must be regarded as purchasers pendente lite, and consequently the judgment of 1870 operated to divest the latter of all interest in the lot in dispute, except an estate for the life of Mary Bryant.

4. The right of the owner of the fee in remainder to maintain an action during the tenancy for life, and against the life-tenant, to establish his claim to the land, or to quiet his title, was recognized by this court in Simmons v. McKay, 5 Bush, 25, and is not denied by counsel for appellant; but it is contended that, as it is an action for relief, not provided for in chapter 71, Gen. St., according to section 9, art. 3, it can only be commenced within 10 years next after the cause of action accrued. It has been repeatedly held by this court that limitation does not, during the existence of the particular estate, run in favor of the life-tenant against the owner of the estate in remainder; and, this being so, it would seem that an action to quiet his title might be instituted by the remainder-man at any time before the termination of the particular estate; for we cannot understand how a right to establish a claim to land, or to quiet title to land, may be barred by limitation, and the right to recover the possession exist for an indefinite period afterwards. In our opinion, the statute of limitations is no bar to this action.

Judgment affirmed.

Ky.App. 1887.
KELLER and others v. STANLEY and others.
4 S.W. 807


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