Lynam v. Green , 48 Ky. 363 ( 1849 )

Cihee Justice Marshall

doliveied the opinion of the Court..

There was no error in dismissing. Mrs.. Lynam’» cross bill, and disregarding her claim. Whatever may be the extent of the interest in the money bequeathed to her in her father’s will, whether absolute or condi- . , - . c . . . . . . tional, tor lite or m tee, it is certainly not given as a-separate estate, free from the control of her husband, No trust, therefore, arises in her favor on that ground, from the husband’s having appropriated a part, or the whole of - the money received by him under the will, to the purchase of the land in question. And even if this money were her separate property, held by her husband in trust for her, her assent clearly established to the purchase of the land as made, would preclude her obstructing the vendor’s remedy for subjecting so much-of it as might be necessary to the payment of the residue of the purchase money. If any part of the land, or its price, should remain after satisfying the vendor’s claim, we-perceive no reason why.the husband may not if lie will, secure it to his wife, but there is no ground jn ^¡g j'ecord for compelling him to do so,- and especially as he is no party to the cross bill of his wife.

A sale was decreed, the case taken to the an^sale^made’ ofdmaciert while" the case was in peals,°butno ac-on until ule mandate of reversal circuit lheeo^ was set aside set asi'de — Held -¿hat the circuit court had then fun power to set and having doné quent,al\)roceedings for conveyanee under the sale was erroneCrtte'

With regard to so much of the decree as relates to* the coercion of the money for which the land had been r . . '* - . , , , sold, we are ox opinion that the sals'having been made, while the cause was formerly in this Court, and the rePort sa^e accompanied by the sale-bond having been returned but not acted on by the Circuit Court when the mandate of reversal was entered there, that Court hadi full power over the sale. And although the reversal not necessarily defeat the sale, and this Court did not direct it to be set aside, yet as the- Circuit Court in entering the mandate, ordered “that the decree heretofore rendered in this case, and the proceedings under it get as¡¿e ” the sale and sale bond were necessarily ’ J vacated. Whence it follows that the subsequent Orders. and decree for carrying that sale into effect by a conveyance of the land, and a coercion of the money on the sale bond were unauthorized and erroneous. Th e-sale and bond having been set aside, there was in effect no sale to cany out, no bond to enforce, but the Court, on non-payment of the sums found to be due for the land, should have decreed a sale in the usual manner.

It has been already stated that the order setting aside the proceedings under the reversed decree, goes farther than the mandate of this Court, and it may be that it goes farther than was intended by the Circuit Court; or it may have been deemed necessary, in order to .give full opportunity for the assertion and effectuation of the claim of Mrs. Lynam, who was by the mandate directed to be made a party; be this as it may, the order itself was never corrected, reversed or set aside. And as whether erroneous or not, it is clear and peremptory in its terms, and embraces the sale, which must in fact have been its peculiar object, since no other proceedings had been taken under the- decree but the sale and report, it must have its effect of nullifying the sale. This conclusion renders it unnecessary to notice- other objections taken to the enforcement of the sale bond, and the mode of doing it.

Tamer for the appellant.

Wherefore, the decree, so far as it relates t'o> Mrs. Lynam’s claim and cross bill, is affirmed; but so far as it relates to the completion of the sale under the former decree, and the enforcement of the sale bond, the same is reversed, and the cause is remanded for further proceedings and decree in conformity with this opinion.