| CASE ONE |
|---|
| 261 Ky. 190 |
| Court of Appeals of Kentucky. |
| MILLS et al. v. MILLS et al. |
| Nov. 7, 1935. |
Appeal from Circuit Court, Knox County. Action by A. Y. Mills and wife against Mat Mills and another, wherein Cordia Taylor and others filed an intervening petition. From the judgment, plaintiffs appeal and defendants cross-appeal. Affirmed on both appeals. CREAL, Commissioner. By deed dated July 19, 1923, A. Y. Mills and Nancy Mills, husband and wife, for the recited consideration of $1 conveyed to their sons, Mat and Sawyer Mills, a tract of land in Knox county, Ky., containing something over 300 acres. The conveyance was in the usual form of a warranty deed, but it contained the following provisions: "Should parties of second part hereinbefore mentioned fail to sell, devise or bequeath such property hereinbefore described in their lifetime, then said property shall fall to the legal heirs of the bodies of A. Y. Mills and Nancy Mills when these grantors (A. Y. Mills and Nancy Mills) shall have deceased. "Should either of second parties Mat Mills or Sawyer Mills decease before selling or disposing of said property, then said property shall go to the survivor of the second parties." In November, 1924, Mat Mills and Sawyer Mills and Charles Butler and others agreed upon an exchange of land whereby Mat and Sawyer Mills traded or exchanged the land conveyed to them by the above deed, and other land not included in that conveyance, for a tract of land which Butler and others conveyed to them. A. Y. Mills and Nancy Mills joined their sons Mat and Sawyer Mills in the deed to Butler and others conveying the land exchanged and covered by the deed from A. Y. and Nancy Mills to their sons, but other land involved in the exchange and not covered by that deed was, at the direction of Butler and others, conveyed by Mat and Sawyer Mills to William and Nancy Grey. In the deed from Charles Butler and others, to Mat and Sawyer Mills conveying the tract of land given in exchange for the lands owned by the Mills, there were no conditions or restrictions; the deed on its face conveying a fee-simple title. In August, 1923, A. Y. Mills and Nancy Mills instituted this equitable action against Mat and Sawyer Mills, alleging that many years ago they conveyed title to a tract of land to the defendants in trust yet retained possession of same; that thereafter the land was swapped to Charles Butler for other lands described in the petition, and title in trust to defendants was made for the use and benefit of plaintiffs with the distinct agreement and understanding that title thereto should be made by defendants to plaintiffs on their order and demand; that although demand had been made upon them, they had failed and refused to transfer title to plaintiffs. They prayed that defendants be required to convey to them the land described in the petition and, upon their failure to do so, the master commissioner be directed to convey same on their behalf to plaintiffs. In addition to a general denial of the allegations of the petition, defendants in a second paragraph alleged that at the time plaintiffs made the deed to defendants, A. Y. Mills was indebted to Mat Mills in the sum of $375; that at the time A. Y. Mills was engaged in the mercantile business and was indebted to various wholesale houses for substantial sums and contemplated procuring further credit for goods in substantial sums; that his creditors were pressing him for payment, and plaintiffs, for the purpose of placing the title to the tract of land conveyed beyond the reach of his creditors and proposed creditors and with the fraudulent intent to prefer Mat Mills and to cheat, hinder, and delay his creditors, executed and delivered the deed to defendants, which was accepted by them and of which they took charge, subject to certain privileges which they from time to time granted plaintiffs in the use of the property; that they swapped the tract of land conveyed by the deed from plaintiffs to Charles Butler and wife as a part of the consideration for the land conveyed by Butler and wife to them, but as a part of the consideration of the exchange they conveyed another tract of land to William Grey at the direction of Charles Butler and wife and that Grey paid the consideration therefor to the Butlers; that in addition to the sum of $375 which A. Y. Mills owed Mat Mills at the time of the execution of the first deed, defendants have paid to plaintiffs the further sum of $2,000 which they accepted and received for the land; and that the sum so paid was the fair and reasonable value of the land at the time it was conveyed to defendants. After proof had been taken by the respective parties, Cordia Taylor, Winnie Edwards, and Dicie Jackson, daughters of A. Y. and Nancy Mills, filed a petition asking to be made parties, and alleged that they and the defendants Mat and Sawyer Mills were the only children and heirs at law of plaintiffs. They further alleged that about the year 1922, plaintiffs, for the love and affection which they had for the children and because of domestic friction between them, determined to make a conveyance of all of their real property to their five children; that the deed was executed and delivered to one of the defendants and is now in the possession of one of them, or after its execution and delivery and for the purpose of defrauding the petitioners out of their lawful interest was destroyed; that in lieu of the deed so executed and delivered, the defendants through fraud, deceit, and misrepresentation procured plaintiffs, or at least plaintiff Nancy Mills, at a time when she was old, infirm, could not see nor read nor write, and was uneducated to sign another deed to defendants by which there was conveyed to them plaintiffs' home place and other lands which were thereafter exchanged for the land in controversy; that the equity title and interest of the petitioners passed from the original tract into the land in controversy and that they are the owners of a three- fifths undivided interest therein, subject to the right of plaintiffs to use, occupy, and control same during their life; that if it should be adjudged by the court that the land in controversy belongs in fee simple to A. Y. and Nancy Mills, petitioners would have no complaint, but should it appear to the court that the original deed irrevocably passed title, then the petitioners should be adjudged a three-fifths undivided interest in all the property, and in that event defendants should be compelled to produce and enter of record such original deed. They prayed that they be adjudged the ownership of a three- fifths undivided interest in the lands in controversy in the event the court should conclude that plaintiffs are not entitled to recover such property, and in that event prayed that the deed upon which defendants rely be adjudged fraudulent, canceled, set aside, and held for naught. Thereafter defendants filed an amended answer, alleging that at the time of the execution and delivery of the deed by Charles Butler, etc., to them, and immediately prior thereto, A. Y. Mills and Nancy Mills knew and had actual notice and knowledge of, and consented and acquiesced in, the execution of the deed to defendants conveying title to them; that by reason thereof and the acts set out in the original answer, plaintiffs are estopped from claiming title to the land or to any interest therein. The issues were completed by an agreement treating the affirmative allegations of the pleadings as controverted of record. On final hearing it was adjudged: (1) That Sawyer and Mat Mills are the joint owners of a one-fourth undivided interest in and to the land described in the deed from Charles Butler and others to them by reason of payment of part of the purchase price by them for the land; (2) that Sawyer and Mat Mills own a life estate in the remaining three-fourths undivided interest in such land with survivorship to the one who survives the other; (3) that the remainder in and to the three-fourths shall pass at the death of the survivor to the living legal heirs of the body of A. Y. and Nancy Mills. It was further adjudged that plaintiffs recover their costs. From so much of the judgment as is adverse to them, plaintiffs are prosecuting an appeal, and upon motion of defendants they have been granted a cross-appeal from so much of the judgment as is adverse to them. A. Y. Mills testified that for many years he owned the land which he and his wife conveyed to their sons; that he and his wife first conveyed it to the heirs of their body; that Mat seemed to become dissatisfied with this arrangement and wanted the land deeded to him and Sawyer, which he and his wife later did. He assigned as a reason for making the deed that he and his wife were having domestic trouble, and his evidence and that of others indicates that the wife had consulted an attorney and was threatening to institute suit for divorce and alimony; that she was insisting that the land be conveyed to their children, or at least to Mat and Sawyer, so her husband could not dispose of it, or in the event he remarried, others would not get the property. A. Y. Mills testified that his sons said they would permit him to handle and control the land as he had been and would deed it back to him; that neither of the sons paid him any consideration for the land; that at the time the deed was made, he might have owed some wholesale houses, but that the deed was not made for the purpose of defrauding creditors; and that all of them had been fully paid. Concerning the tract of land which Mat and Sawyer conveyed to William Grey and which it is claimed was a part of the consideration for the land conveyed to them by Charles Butler and others, A. Y. Mills claims he owned it, but he did not join in the deed with his sons, and his evidence concerning his ownership like that regarding many other matters is very vague, indefinite, and uncertain. When asked why she made the deed to her sons, Mrs. Mills testified that it was her understanding that it was being made to her five children, and when it was read over to her she protested because of the names all not being in it, and they told her it was to her lawful heirs and they would get it. When asked how Mat and Sawyer's names got in the deed, she replied: "Their names was put in it but not with my understanding that they were to have it altogether, that it was to be for the five heirs but their names were in it in some shape but not in a way I can explain it." She stated that it was not their intention to give the land to Mat and Sawyer, but they said nothing about conveying it back; that she told them she would sign it if it was made to the five children; and that they said it was made to the lawful heirs of "our body" and that they would get it. Mrs. Mills admitted that she and her husband at one time made a deed for this tract of land to his parents, but could not give any details or definite information concerning that transaction. The three daughters testified, but they knew nothing personally about the deed from their parents to their brothers, their evidence relating in the main to statements made by the mother indicating that it was her purpose and intention that the deed should be made to all the children, and one of them testified that one of the brothers made the statement that the deed was made that way. Both Mat and Sawyer Mills testified that the deed dated July 19, 1923, hereinbefore referred to, was the only deed made to them by their father and mother and that no deed was made to all the children. Mat Mills testified that his father was indebted to him in the sum of $370 or $375 and had been discussing for some time making him a deed to a portion of the land. They testified concerning the domestic trouble between their father and mother and of her threatening to institute proceedings against him, and also that A. Y. Mills was heavily indebted and was being pressed by his creditors and had expressed fear that the creditors would attempt to subject the land. They testified that there was no agreement or understanding that they would convey the land back to their father and mother or that there were any conditions except those expressed in the deed. Sawyer Mills testified that he furnished money to his father to pay some creditors, and his father later said he could not pay it but would let it apply on the land which he had deeded to him and Mat. There is evidence for appellees that Mr. and Mrs. Mills read the deed which they made to their sons, and that the mother suggested some of the quoted provisions. There is considerable evidence concerning financial transactions between A. Y. Mills and his sons, and especially with Mat Mills. There is a conflict in evidence as to who actually owned the land conveyed to William Grey, Mat and Sawyer Mills being positive in their statements that the title to this land was in them, but concerning all these matters there is a conflict. Since there is nothing in the deed from A. Y. Mills and Nancy Mills to their sons to indicate or express an intention to create a trust and no other documentary evidence to evince or express such an intention appellants must necessarily rely upon parol evidence to substantiate their claims. Even if it be conceded that there was no consideration for the conveyance except the nominal consideration of $1 expressed therein, no inference arises from that fact favorable to appellees. In Restatement of Law of Trusts, it is said: "Where a transfer of property is made without consideration, the inference is that the transferor intends to make a gift to the transferee not that he intends that the transferee should hold the property for the benefit of the transferor. This is true even though it appears in the instrument of conveyance that no consideration is paid for the conveyance." It is indicated in that work that this is a departure from the common-law rule. Appellants cannot establish their claim that this land was or is held in trust by appellees for the use and benefit of A. Y. and Nancy Mills by a mere preponderance of evidence, but the evidence to establish such trust must be strong, unequivocal, and convincing, and of such a nature as will leave no doubt as to the truth of the necessary facts. Following this well-established rule respecting the character of evidence required to establish a trust, it is at once apparent that the evidence for appellants fails to measure up to the requirements; but even if only a preponderance of evidence were required, it could at most be said that the evidence is about equipreponderant, and in the confused and conflicting state of the record the mind would be left in doubt as to the correctness of the chancellor's finding, and therefore it should not be disturbed. The claim of the daughters that it was the intention of their parents to convey the land jointly to the five children, the relief asked by them on that ground would involve a reformation of the deed. The same rules apply to the weight and sufficiency of the evidence to warrant such reformation as applies to establishing a trust. Mere preponderance of evidence is not sufficient to warrant a reformation of a deed on the ground of fraud or mistake, but it must be clear and convincing and establish such fraud or mistake beyond reasonable controversy. The evidence offered to establish the fraud or mistake in the deed is clearly not of such character or weight as would authorize a reformation of the instrument. The cross-appeal involves the propriety of the court's construction of the quoted provision of the deed. While the quoted provisions are somewhat awkwardly worded, it is manifest that it was intended thereby to give to the grantees an estate for life in the property conveyed with remainder to the heirs at law of the grantors at the death of the survivor of the grantees, and this was the effect given to the instrument by the judgment of the chancellor. Wherefore the judgment is affirmed on both the original and cross appeals. Ky.App. 1935. MILLS et al. v. MILLS et al. 87 S.W.2d 389, 261 Ky. 190 |
| Can not locate Case Two |
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| CASE THREE |
| Mills v. Taylor |
| 249 S.W.2d 779 |
| Ky.,1952 |
| June 20, 1952. |
Suit in equity by A. Y. Mills and another against Fannie Mills and others wherein Cordelia Taylor and others intervened. Fannie Mills intervened and set up claim of ownership of undivided interest in the real estate involved. The Knox Circuit Court, Knox County, J. B. Johnson, J., entered judgment to the effect that Fannie Mills had only a life interest in the share of the real estate claimed, and she appealed. The Court of Appeals, Clay, C., held that Fannie Mills was not bound by judgments in suits to which she had not been a party. Judgment reversed. CLAY, Commissioner. This is an appeal from a judgment of the Knox circuit court adjudicating the rights and interests of the appellant, Fannie Mills, in and to a tract of land known as the Butler farm. The principal questions involve the effect of former judgments determining title to this property and the proper construction of the deed through which she claims. In 1923, A. Y. Mills and his wife, Nancy, conveyed what is known as the Hignite farm to their sons Matt and Sawyer. We quote the pertinent parts of this deed: 'This deed of conveyance, made and entered into the 19th day of July 1923, between A. Y. Mills and wife Nancy Mills, parties of the first part and Matt Mills and Sawyer Mills, parties of the second part; Witnesses: That said parties of the first part, for and in consideration of the sum of One Dollar in hand paid, the receipt of which is hereby acknowledged, do we hereby sell and convey to the parties of the second part the following described property * * *.' Should parties of second part, hereinbefore mentioned, fail to sell, devise or bequeath such property, hereinbefore described, in their lifetime, then said property shall fall to the legal heirs of the bodies of A. Y. Mills and Nancy Mills, when these grantors (A. Y. Mills and Nancy Mills) shall have deceased.' 'Should either of second parties, Matt Mills or S. A. Mills decease before selling or disposing of said property, then said property shall go to the survivor of the second parties.' Matt and Sawyer in 1924 conveyed the Hignite farm to Charity Butler in exchange for the latter's farm. In 1930 Sawyer Mills conveyed by deed his one-half interest in the Butler land to his wife Fannie Mills, appellant, which was not recorded until 1947. In 1932, the gas and oil rights to the Butler land were leased, and subsequent drilling produced gas of considerable value. In 1933, an action was instituted by A. Y. and Nancy Mills against Matt and Sawyer to have the 1923 deed set aside. Appellees, Cordie Taylor, Winnie Edwards and Dicey Jackson, daughters of A. Y. and Nancy, intervened in the action, alleging that the 1923 deed was obtained by their brothers by fraud. Though the original deed conveyed the Hignite property, the interests of the parties were considered as transferred to the Butler farm. In the suit just mentioned, the claims of the parents and the daughters were denied by the Chancellor. On appeal this judgment was affirmed. Mills v. Mills, 261 Ky. 190, 87 S.W.2d 389. At the close of the opinion the Court stated, page 393 of 87 S.W.2d: 'The cross-appeal involves the propriety of the court's construction of the quoted provision of the deed. While the quoted provisions are somewhat awkwardly worded, it is manifest that it was intended thereby to give to the grantees an estate for life in the property conveyed with remainder to the heirs at law of the grantors at the death of the survivor of the grantees, and this was the effect given to the instrument by the judgment of the Chancellor.' This constituted a judicial construction of the language of the deed which we have quoted earlier in the opinion. The rights under this deed were again considered in the case of Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962, and the original construction of the deed as granting only a life estate was followed. In neither of these cases was appellant Fannie Mills a party, although she had a deed to Sawyer's one-half interest which he had conveyed to her in 1930. In 1950 she intervened in the last suit (which was still pending on the docket) and set up her claim of ownership. She asserted that by virtue of the original deed from A. Y. and Nancy Mills to Matt and Sawyer they each were conveyed an undivided one-half interest in fee in the property, and that by virtue of Sawyer's deed to her, she now has that undivided one-half interest in fee. She also owns a one-eighth undivided interest which she purchased at a commissioner's sale when the interest of Matt was sold in a foreclosure suit. The lower court decided that the former opinions of this Court, above referred to, constituted final adjudications of the proper construction of the original deed, and that appellant has only Sawyer's adjudicated life interest in the property. Since appellant was not a party to the former suits, the judgments entered therein could not be binding upon her. Appellees contend, however, that in some way appellant is estopped to attack the construction of the deed in the former suits to which her husband was a party. They point out that in 1947 she filed a demurrer to a petition in the present action. This could have no legal effect upon the issue under consideration. In another suit against Matt Mills, she purchased his one- eighth undivided interest. We do not see how the purchase of another outstanding interest in the property would affect her right to assert subsequently her own title. Other steps were taken in the pending suit by Matt and Sawyer Mills in 1947, which may have constituted admissions by them that they owned only a one-fourth undivided fee interest. The acts of her husband and brother-in-law could not bind her since she was not in privity with them. In the independent suit involving Matt Mills' interest, appellant did file a motion stating that she owned an undivided one-eighth. This fact was true, as she had purchased it from Matt. As before stated, it is not an admission that she owned no other interest. In the present action, when appellant was not a party, there was an order of court entered referring to her as a life tenant. This order did not judicially fix her rights. In the motion filed by appellant in this action to be made a party to the suit, she alleged she was the owner of a one-fourth interest in the lands and that Matt and Sawyer were owners of the other undivided three- fourths. When shortly thereafter she was permitted to intervene, she filed an answer claiming to be the owner of five-eighths. Her motion did not foreclose her right to assert an additional claim. There are no innocent purchasers for value involved in the present controversy. Appellees acquired whatever interests they may have in the property only by virtue of the former judgments entered when appellant was not a party to the suit. Nothing that appellant has done or failed to do has in any wise misled appellees or prejudiced them or their interests in the property. We can find nothing in the nature of estoppel which should prevent her from setting up any rightful claim she has. As heretofore pointed out, the original judgments were not binding upon her, and therefore she has the right to request a reconsideration of the construction of the original deed. We believe the deed from which we have quoted in the earlier part of this opinion was erroneously construed in the case of Mills v. Mills, 261 Ky. 190, 87 S.W.2d 389. Counsel for appellees tacitly admit this, because they make no attempt to justify the original construction to the effect that Matt and Sawyer were conveyed only life estates in the property. Appellant has furnished a number of authorities which establish that under our rules of construction, at least applicable to deeds executed prior to 1948, the purported limitation in the deed (creating contingent remainders) could not effectively cut down the fee first granted. It is unnecessary to discuss these authorities because by the very wording of the deed itself and Matt and Sawyer's subsequent actions, they became vested with the fee. The instrument provides in substance that if the grantees do not sell or dispose of the property during their lifetime, the heirs of the grantors shall take the remainder. The fact is that shortly after the conveyance Matt and Sawyer did sell and dispose of the land. Even if they had only a defeasible fee up until that time, certainly it then became finally vested. Since Sawyer had a one- half undivided fee interest in the property and conveyed what he owned to appellant, she likewise has that interest (plus the other one-eighth interest which she purchased). In the oral argument, by brief and by letter, attorneys for appellees make some attempt to attack the legality and the sufficiency of the deed from Sawyer to appellant. There is no pleading in the record to support such an attack, and we cannot now for the first time consider this question. We may say in passing, however, that on its face the original deed appears valid and effective to pass Sawyer's interest in the property. This decision of course does not affect other interests in the property finally adjudicated between the parties to the earlier judgments. The judgment is reversed for consistent proceedings. Ky.,1952 MILLS v. TAYLOR 249 S.W.2d 779 |
| CASE FOUR |
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| Mills v. Taylor |
| 268 S.W.2d 412 |
| Ky.,1954 |
| April 30, 1954. |
Action involving interests in tract of land which had been exploited under lease for production of gas and oil. The Knox Circuit Court, Knox County, William L. Rose, J., entered judgment providing that the holder of a life estate in land in question was entitled to the income accruing from bonus, rentals and royalties under the lease with respect to her life interest, and the life tenant appealed, contending that she was entitled to bonus, interest and royalties themselves. The Court of Appeals, Clay, C., held that where, at time the life tenant acquired her life interest, the land was, and had been for several years theretofore, producing under the lease, the rentals and royalties realized therefrom constituted income or yield from the land which went to life tenant rather than to remaindermen. Judgment reversed. CLAY, Commissioner. This is the fourth time we have had before us some phase of a controversy involving interests in a tract of land which has been exploited under a lease for the production of gas and oil. Some of the difficulty may be laid to the misconstruction of a deed by this court when the controversy was first presented here. The history of the litigation may be found in the following cases: Mills v. Mills, 261 Ky. 190, 87 S.W.2d 389; Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962; Mills v. Taylor, Ky.1952, 249 S.W.2d 779. In the last opinion above cited we decided that appellant had a five-eighths fee interest in the land, and the judgment entered by the Chancellor following that opinion correctly recognized this interest. In addition, however, it appeared in an earlier record that appellant also had a life estate in the remaining three-eighths. The judgment appealed from, which is now before us, provided that appellant was entitled to the income accruing from the bonus, rentals and royalties under the lease with respect to her three-eighths life interest. Appellant contends that she is entitled to the bonus, interest and royalties themselves because of the fact that she acquired her life interest in the three-eighths after the land was under lease for the production of oil and gas. It is the general rule recognized in Kentucky that a life tenant is entitled to the rentals and royalties accruing under a gas or oil lease as a part of the profits of the land if the land was being exploited under such a lease prior to the time of the acquisition of the life estate. It appears from the record appellant acquired her life interest under a commissioner's deed on May 4, 1947, and that the land had for several years theretofore been producing under the lease. Consequently since the land had been in a sense dedicated to this use prior to the acquisition of her life estate, the rentals and royalties realized therefrom must be considered the income or yield from the land which goes to the life tenant rather than to the remaindermen. Appellees' argument is that one of our earlier decisions, Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962, recognized that the life tenants in this property were only entitled to the interest on the income accruing from the bonus, rentals and royalties. However, appellant was not a party to that suit and the decision was based upon the fact that the life estates therein considered (which we subsequently held were not life estates at all) were created prior to the exploitation of the land for the production of gas and oil. Therefore, while that case recognized the correct rule of law, it is not binding upon appellant because the circumstances were changed at the time she acquired her life interest. It appears, therefore, that the Chancellor incorrectly allowed appellant only the income from the bonus, rentals and royalties rather than the corpus of the bonus, rentals and royalties. Considering the way this litigation has been practiced from the beginning, the unsatisfactory record, and the differing constructions of the deed, the error of the Chancellor is understandable. The judgment is reversed for the entry of one consistent with this opinion. Ky.,1954 MILLS v. TAYLOR 268 S.W.2d 412 |
| CASE FIVE |
|---|
| Taylor v. Mills |
| 320 S.W.2d 111 |
| Ky.,1958 |
| Dec. 12, 1958. |
CLAY, Commissioner. This is the fifth appeal arising out of a series of controversies which stem from a 1923 conveyance of a tract of land in Doe Gap. The history of this litigation may be traced through the following cases: 1. Mills v. Mills, 261 Ky. 190, 87 S.W.2d 389, decided November 7, 1935. 2. Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962, decided November 1, 1938. 3. Mills v. Taylor, Ky., 249 S.W.2d 779, decided June 30, 1952. 4. Mills v. Taylor, Ky., 268 S.W.2d 412, decided April 30, 1954. Upon the filing of the mandate following our last decision, the trial court entered judgment in conformity therewith and also included a judgment conforming to our previous opinion handed down June 30, 1952. Appellants promptly undertook to appeal from this judgment, which complied in every respect with our mandate. They did not proceed under CR 60.02 or otherwise to have such judgment modified or vacated. Their only contention on this appeal is that the last judgment entered, although conforming to our final decision in the controversy, is in conflict or is inconsistent with our previous decisions and opinions in this litigation, and for that reason is erroneous. Appellants present no justiciable ground that would justify our reversal of the judgment, since it conforms to our mandate and our final decision in this case. To sustain appellants' position would in effect require us to entertain and uphold a second petition for rehearing after we had directed entry of a final judgment. If this practice were permitted, no litigation could ever be terminated. We know of no precedent for it. The final decision of this Court is the law of the case, whether right or wrong, and is conclusive of the questions therein resolved and may not be reopened and reconsidered by prosecuting an appeal from a judgment entered in conformity therewith. It is binding upon the parties, the trial court, and upon this Court. It is true that CR 60.02 may provide a remedy for attacking a judgment even after there has been a final decision with respect thereto by the Court of Appeals. This was permitted under former Civil Code of Practice Section 518, which CR 60.02 supersedes. However, no motion under CR 60.02 was made in the trial court, and we will not initially entertain such a motion. Perhaps more fatal to appellants' position is the fact that the ground alleged (i. e., error in our former decision) is not, as we have pointed out above, a ground for relief from a judgment. Since the judgment appealed from was entered in conformity with our mandate and with our final decision in this particular controversy, we find no error in the judgment. The judgment is affirmed. Ky.,1958 TAYLOR v. MILLS 320 S.W.2d 111 |
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