Case One of Three
22 Ky.L.Rptr. 1523
Court of Appeals of Kentucky.
MEALER et al. v. GILBERT et al.
Dec. 20, 1900.
ACTION: Affirmed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by John T. Hays against E. J. Mealer and others to enforce a mortgage lien.
Judgment for plaintiff, and certain of the defendants appeal.

PAYNTER, J.
The appellant E. J. Mealer executed her note to the appellee John T. Hays for $400, and to secure same gave a mortgage on certain real estate. She pleaded that the note (1) had been obtained by fraud and misrepresentation; (2) that he was to collect certain moneys and apply them to the payment of a certain debt against her property, and failed to do so; (3) that his employment as her attorney was inconsistent with his previous employment by the appellee Gilbert. A certain sale bond for over $8,000 had been executed in the Bell circuit court by the husband of the appellant and others, and an execution which issued thereon had been levied on property in Barbourville as that of her husband, which was claimed by her. As compensation for his services as attorney, Hays claims she agreed in writing to pay him $350 and expenses if he succeeded in relieving her property from the execution which had been levied upon it. Pursuant to that agreement he enjoined the collection of the execution, and finally obtained the cancellation of the bond upon which the execution had been issued, thus relieving her property from the levy under the execution, and her deceased husband's estate from liability on the sale bond. After this had been accomplished he proposed to her to settle the matter by the execution of the note and mortgage for his fees, and the expense which he had incurred in conducting the proceedings. She was aware of what he had done at the time she executed the note and mortgage, and did so voluntarily. Whether it was advisable for her to contract the liability which she did to have him conduct the litigation for her is not necessary for us to decide. She regarded it as important to have the services performed, and he, as attorney, rendered them for an agreed compensation. We do not think the record in this case shows that Hays unfairly or wrongfully obtained the note and mortgage. In the suit which Gilbert brought to enforce his claim against the property of the appellant, she did not employ Hays, but had employed Wilson and Rawlings, who did represent her in that case. There was nothing inconsistent with the services which Hays had undertaken to perform for the appellant and that which he was performing for Gilbert. He never undertook to resist Gilbert's effort to enforce his mortgage against her property. On the contrary, Gilbert had employed him to enforce his mortgage lien at the time she employed him to resist the claim growing out of the execution of the sale bond in the Bell circuit court, and she was aware of that employment. Hays seems to have favored her in the matter by getting his client, Gilbert, to suspend for a time the prosecution of his action for the enforcement of his lien. She really made no defense to the enforcement of Gilbert's claim. She did file an answer to it, but subsequently withdrew it.

The judgment is affirmed.

Ky.App. 1900.
MEALER et al. v. GILBERT et al.
60 S.W. 8, 22 Ky.L.Rptr. 1523

Case Two of Three
24 Ky.L.Rptr. 1386
Court of Appeals of Kentucky.
HAYS v. GILBERT.
Jan. 22, 1903.
ACTION: Affirmed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Suit by John T. Hays against William Gilbert to enjoin the latter from collecting a sale bond executed by him for the interest of John T. Mealer at a sale under a judgment rendered April 21, 1897, in a suit to foreclose a mortgage by said Gilbert against Mealer's administrator, and to vacate and set aside such judgment.
From a judgment for defendant, plaintiff appeals.

BURNAM, C. J.
This is an appeal from a judgment of the Knox circuit court dissolving an injunction and restraining orders granted by the clerk, and dismissing plaintiff's petition. The facts out of which the litigation grew are substantially as follows: In February, 1896, William Gilbert instituted a suit in the Knox circuit court against E. Jane Mealer, administratrix of John Mealer, and E. Jane Mealer individually, in which he sought to enforce a mortgage lien for $1,500, with interest from the 20th day of March, 1891, upon a house and lot owned jointly by the defendants, situated in Barbourville, Ky. His attorney in this suit was the appellant, John T. Hays. Shortly after the institution of this suit, Hays was employed by the defendant, E. Jane Mealer, to represent her in a litigation then pending in the Bell circuit court, under an agreement that if he succeeded he was to be paid a fee of $350 and his expenses. As a result of this contract, E. Jane Mealer on the 25th day of January, 1897, executed her promissory note to the appellant, John T. Hays, for $400, due 12 months after date, with interest at 6 per cent. per annum until paid, and, to secure the payment thereof, executed a mortgage upon the same property which was covered by the original mortgage to William Gilbert. And on the 2d day of March, 1898, he was made a party, on his own motion, to the suit of Gilbert against Mealer's administrator, and set up his debt, and asked an enforcement of his mortgage lien. On the 12th day of April, 1898, a judgment was entered in that proceeding subjecting the mortgaged property first to the debt of William Gilbert, and then the overplus, if any, to the debt of John T. Hays. The property was appraised at $3,000, and the half interest of John Mealer and that of his wife, E. Jane Mealer, were sold separately. At this sale John T. Hays became the purchaser of the interest of John Mealer at $1,000, and William Gilbert of the interest of E. Jane Mealer at $1,200. The gross amount received from the entire sale only left $3.25 to be paid to John T. Hays, after paying the debt, interest, and costs of William Gilbert. An appeal was prosecuted to this court, and affirmed December 20, 1900. See 60 S. W. 8. Upon the return of the case to the lower court, John T. Hays instituted this suit, in which he sought to enjoin William Gilbert from collecting the sale bond for $1,000 executed by him for the interest of John T. Mealer at the sale under the judgment in the suit of Gilbert against Mealer's administrator, and to vacate and set aside that judgment, under section 518 of the Civil Code of practice, for the reason, as he alleges, that the judgment was erroneous and prejudicial to his rights as junior mortgagee in several particulars: First, he says that it adjudges Gilbert interest on his note from March 20, 1891, when in fact it did not bear interest until March 20, 1892; second, he alleges that on the 20th day of March, 1891, John and E. Jane Mealer paid Gilbert on his note $150, for which he gave no credit; third, he alleges that Gilbert did not verify and demand payment of his note of the administrator of John Mealer within one year after his appointment, and that for this reason the note bore no interest after the death of Mealer. The temporary injunction was granted, in accordance with the prayer of the petition, by the clerk of the Knox circuit court. The regular judge of the Knox circuit court, being of counsel for the defendant, was disqualified from sitting; and, this fact being certified to the governor, Hon. J. M. Benton was appointed special judge, and tried the case. His opinion is copied into the record, and succinctly states the facts and his conclusions of law. It is as follows:

"It is the judgment and opinion of the undersigned special judge that the proper construction of the petition in this case is that it is one filed for the purpose of procuring a vacation or modification, according to section 518 of the Civil Code of Practice, of the judgment in favor of Wm. Gilbert in the action of said Wm. Gilbert, plaintiff, against E. J. Mealer, administratrix, which judgment was rendered on the 21st day of April, 1897. Upon the authority of Hart v. Hayden, 79 Ky. 346, I am of the opinion that the plaintiff, Hays, could by petition have been made a party to the action of Wm. Gilbert against E. J. Mealer, administratrix, before the Gilbert judgment was rendered, on the 21st day of April, 1897, and could have presented any defense then known to him against Gilbert's claim; and I am of the opinion that in this case, and for the purposes of this motion, the plaintiff, Hays, should be treated as having been a party to that suit from the beginning of the April term, 1897, of the Knox circuit court. I am of the opinion that it cannot be held, under the statements of the petition in this case, that there was any fraud or collusion between Gilbert and E. J. Mealer prior to the time Gilbert obtained his judgment, and it is that judgment which is sought to be vacated or modified in this action. Therefore the question of fraud need not be considered.

"The only ground which I consider is stated in the petition which might be considered sufficient to justify a court to vacate and modify the Gilbert judgment is what might be termed the newly discovered evidence with reference to the payment of the usurious interest to Gilbert for the first year, and the fact that he was allowed interest on this note, notwithstanding the fact that he failed to verify and make demand of his claim within a year from the time the first personal representative qualified, and as an action to vacate or modify the judgment upon such grounds must, according to section 344, be brought within three years after the final judgment is rendered, that ground cannot now avail plaintiff for the three years, so far as Gilbert is concerned. The judgment runs from the 21st day of April, 1897, while this action was not instituted until April 5, 1901.

"The clerical misprision mentioned in the petition, if any in fact exists, can be corrected by the motion which is now pending in the action of William Gilbert against E. J. Mealer, administratrix, and full relief to plaintiff on that account can be obtained in that action.

"It being the opinion of the special judge that, according to the showing made in the petition, the only reduction in Gilbert's judgment that plaintiff is entitled to have made is the $90 on account of the first year's interest, and it appearing that, with that reduction only made, the judgments of Gilbert and Hays will more than consume the proceeds of the sale of the property, the attachment prosecuted by Burnside against Mrs. Mealer and the notice of garnishment served on Hays need not be considered, for his answer to that notice can truthfully state that he owed Mrs. Mealer nothing when the notice of garnishment was served. It is therefore ordered that the restraining order and injunction issued by the clerk of the Knox circuit court in the case of John T. Hays against Wm. Gilbert be, and they are hereby, dissolved, and the clerk of said court is directed to enter this order on the records of the Knox circuit court."

After a full examination of the very able briefs filed for appellant, we have concluded that the judgment appealed from should not be disturbed.

Judgment affirmed.

Ky.App. 1903.
HAYS v. GILBERT.
71 S.W. 652, 24 Ky.L.Rptr. 1386
Case Three of Three
26 Ky.L.Rptr. 79
Court of Appeals of Kentucky.
BURNSIDE v. MEALER et al.
May 11, 1904.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by William Burnside against E. J. Mealer and others. Judgment for defendants. Plaintiff appeals.

HOBSON, J.
On December 31, 1894, William Burnside recovered judgment against E. J. Mealer for something over $300. Execution was issued on the judgment, and returned "No property found" on May 26, 1896. On April 4, 1901, he instituted this action, on the return of "No property found," against her, John T. Hays, and William Gilbert. They answered, alleging that they did not owe her anything. He then amended his petition, and alleged that on March 20, 1891, John Mealer, the husband of E. J. Mealer, borrowed of William Gilbert $1,500, for which he gave his note in 12 months, with his wife as his security, and, to secure the note, he and his wife, E. J. Mealer, mortgaged to Gilbert a tract of land owned by them jointly; that, in the certificate of acknowledgment, Mrs. Mealer only relinquished her dower and homestead; that John Mealer paid $150 on the debt, and afterwards died, but no demand was made of the debt, properly verified, within one year after the qualification of his personal representative; that on February 13, 1896, Gilbert filed suit, and recovered judgment foreclosing his mortgage; that the property was sold for the sum of $2,200, one-half of which was the property of E. J. Mealer; that the sale was made on June 27, 1898, and was confirmed at the July term, 1898; that judgment should have been rendered in favor of Gilbert for the sum of $1,350, and he should only have been adjudged a lien on the husband's half of the land; that E. J. Mealer filed an answer in that suit, but afterwards withdrew it, and allowed the judgment to be taken, fraudulently, with intent to prefer Gilbert to her other creditors. The court sustained a demurrer to this pleading because the time for attacking the transaction as a fraudulent preference to prefer one creditor to another had passed before the action was brought. Burnside then filed an amended petition, charging that the judgment was a fraud gotten up by Gilbert and E. J. Mealer for the fraudulent purpose of defeating her creditors in the collection of their debts; that they each acted in collusion for the purpose of covering up, in the hands of Gilbert, the money and property of E. J. Mealer. The court overruled a demurrer to this pleading, and Gilbert filed an answer denying its allegations, and pleading the former judgment in bar of the petition in so far as it set out facts going to show that he had recovered more than was coming to him in the former case. On final hearing the court dismissed the action, and Burnside appeals.

The proof wholly fails to show fraud or collusion between Gilbert and Mrs. Mealer. It tends to show there was some usury embraced in the judgment, but an action to recover usury must be begun in one year after it is paid. This action was not brought in time for that purpose. The fact that when Gilbert, for her accommodation, had indulged her on the debt, she did not set up in the suit the technical defense that he had not demanded his debt, properly verified, in one year after the personal representative qualified, is no evidence of fraud, as the demand may be waived. The statute was only aimed for the protection of the estates of deceased persons from interests or claims not demanded of the personal representative, and, where he knows of the debt, he may waive the demand. This waiver may be express, or may be implied.

The mortgage executed by Mealer and wife purports to convey the entire tract, including all interests they had in it. The clerk's certificate shows they signed and acknowledged the instrument as their act and deed. The fact that he adds to the certificate the words, "Homestead and dower being relinquished by E. J. Mealer," subtracts nothing from the effect of the mortgage, which passed the entire title, and which they acknowledged and delivered as their act and deed. These words mean only that she relinquished homestead and dower in addition to acknowledging the instrument as her act and deed. The certificate considered in Sutton v. Pollard, 16 S. W. 126, 13 Ky. Law Rep. 85, was of wholly different tenor. The only thing the wife there did, according to the certificate, was that she relinquished her dower. The presumption that she consented, when examined separate and apart from her husband, to the conveyance of the property as set out in the mortgage, was there overthrown by the certificate. But here the certificate is in due form, and the words quoted must be understood as added to show that it was not only a joint conveyance of the property, but that she released also her dower and homestead.

Judgment affirmed.

Ky.App. 1904.
BURNSIDE v. MEALER et al.
80 S.W. 785, 26 Ky.L.Rptr. 79



     

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