Parrish v. Ross , 95 Ky. 318 ( 1894 )

CHIEF JUSTICE BENNETT

delivered the opinion or the court.

The appellee, John ~W. Ross, in 1886, sued to recover for life one undivided third of about four Imudred and thirty-eight acres of land. The appellants, John S. Parrish and Mrs. Cordie E. Brawner, also claimed one third each in said tract of land for life, and Mrs. Brawner also claimed absolutely the part that the appellee claimed. Upon final trial the court adjudged Mrs. Brawner and John S. Parrish one third interest each for life in said tract of land, hut denied the appellee’s right to the other third interest therein. The appellee appealed from the decision of the circuit judge denying him a life estate in a third of said land, and suspended the judgment by supersedeas bond. The case was reversed, and the appellee, Ross, was allowed one-third life interest in said .land, and judgment was entered in the lower court in accordance with the opinion of this court. Uyioii the rendition of the judgment denying the appellee any interest in tlie land, tlie court continued tlie case on tlie docket as between John S. Parrish, and Mrs. Brawner for “ any necessary orders between them relative to the division of said land.” The land, pursuant to the judgment, was divided into three equal parts, and Mrs. Brawner and John S. Parrish were allotted a third each, and the other third which the appellee claimed.was not adjudged to either of the appellants, because neither had any right to it, but the court retained control of it during the pendency of the appeal, and ordered the same rented out. Deeds were made to Mrs. Brawner and John S. Parrish to tlieir respective thirds. They abided the judgment of the circuit court, and never thereafter set up any claim to the other third of said land. 'The court, after the rendition of the judgment settling the right of Mrs. Brawner and Parrish to one-third each of said land, and denying to them or either of them any right to the other third, ordered said third to bo rented out by its commissioner, and that bonds be taken for the rent, etc. The commissioner did rent said third out, and the appellants, one or the other, wore renters from year to year, and executed- bonds for each year’s rent. Executions were ordered upon these bonds. Prom the orders of renting and the order directing executions to issue on the rent bonds the appellants appeal. The appeal is prosecuted upon the ground that the appellee’s petition having been dismissed absolutely, and the case having been kept on the docket for orders as between the appellants in reference to the division of said land, that court had no jurisdiction to rent the third not allotted to either of the appellants. It is to be observed that the court, by order, kept the case on the docket for the purpose of taking all necessary orders in reference to the division of the land between the appellants; also the appellee superseded the judgment dismissing his petition, which kept the case on the docket in reference to him; also, that there was no order disposing of the one-third of the land not allotted to either of the appellants, but the court retained .control of the same. Now, in view of these facts, Ave fail to understand how it is that the court lost control of, and the poAver to rent out, this third of the land durnig the pendency of the appeal to this court, when it expressly retained it and no one claimed it. But, independently of all this, we have this plain, honest and business transaction: There is one-third of the land that belongs to the appellee; the appellants have neither right nor claim of right to it, but it belongs to the appellee; the court, on behalf of the appellee, rents it to the appellants; the renting is a voluntary action on their part; they have simply rented land that did not belong to them but to the appellee, and he comes forward and says to the court that he accepts and ratifies its action and is willing to accept the rents. Noav by what principle of fair dealing can the appellants say that the court had no power to rent them the land, and therefore the appellee must sue them for the rent and recover it that way. It seems to us that the poAver of the court may be loft out of ArieAAr, and the case may be put upon the pi’inciple of an unauthorized agent renting the land of the appellee to the appellants, and the appellee comes forward and says that he ratifies the act of renting and claims the rent bond. Noav is there any court in this country that Avould deny the appellee the right to recover on the rent bond? Wo think not. Besides, suppose the order routine: the appellee’s laud was erroneous, liow win that tact hurt the appellants? The}' voluntarily rented the land; there was no compulsion resting on them; there was no interest, to-protect by renting- under an erroneous order. Tlie only person that could he affected by the erroneous order was the appellee, and he comes into court and submits to its action, and ¡isks the court to enforce its order, and the. court did enforce it, which is affirmed.