Cornelison v. Foushee , 101 Ky. 257 ( 1897 )

JUDGE DuRELLE

delivered the opinion of the court.

The appellees in this case brought suit to quiet the title of Anna B. Foushee to a lot of land in Lexington, described by metes and bounds, alleging that the appellant, having recovered judgment against her husband, C. W. Foushee, Jr., in the Fayette Circuit Court, had execution issued thereon and levied hy the sheriff upon the remainder interest of her husband, caused the sheriff to sell his alleged interest, and bought the same at $595 90, the amount of his execution debt, interest and costs, and her husband having failed to pay the debt or to redeem his alleged interest, the appel* lant procured the sheriff to execute and deliver a deed of conveyance to him of the interest in the remainder of C, AT. Foushee, Jr., and has had said deed recorded in the Fayette County Clerk’s office; that she knew nothing of the levy, sale or conveyance until after the deed was lodged for record. She further alleges that her husband had no interest in the lot; that the levy, sale and conveyance of any interest therein for a debt of her husband was an invasion of her rights under the conveyance under which she took title to the property; that the sheriff’s deed constitutes a cloud on her title and ha.s diminished the vendible value of her lot, which she is desirous of selling, and that her husband is willing to unite with her in the conveyance thereof. The petition prays that the levy, sale and deed of appellant be adjudged null and void, the deed cancelled, and that defendant be compelled to relinquish all his claim and title to the lot and any interest therein.

The deed, the terms of which are averred in the petition— and which is filed as an exhibit therewith — conveys the lot to Anna B. Foushee, “her heirs and assigns,” * * . * to have and hold said property unto the party of the second part, her heirs and assigns forever,” with a covenant of general warranty. “Said property is to be owned and held by Anna B. Foushee, as her sole and separate estate, free from the debts or control of her husband during her life, with remainder in fee to her husband, C. W. Foushee, Jr., with power in said Anna B. Foushee during her life to sell said property, or mortgage or encumber the same in any manner by her husband, C. W. Foushee, J r., uniting in the deed, mortgage or conveyance.”

The summons was executed on appellant on April 8, 1895, and judgment rendered by default on Monday, April 29,1895. A motion for a new trial was made and overruled, and the case has been brought to this court for revision.

It is contended for appellant that the case was prema* turely placed upon the trial docket of the court on April 27, 1895, and that under the rules of practice of the Fayette Circuit Court all cases should be placed upon the trial docket not later than Friday before the Monday on which judgment is asked. As to this, it may be said that there is nothing in the record to show what are the rules of practice of the Fayette Circuit Court, and we are. not authorized to take judicial notice of the rules of trial courts. (See A. & E. Enc., 12,182.)

It is further urged that the case was placed on the trial docket on the 19th day after the service of summons upon appellant,'and section 21 of the act concerning circuit courts having continuous sessions,'which provides that “The defense to an action shall be filed within twenty days after the service of the summons in the county where said court sits * * * ” and section 13, providing that “Any party may place the action on such trial docket when the time allowed to the opposite party to plead has expired, without such pleading being filed,” are relied on. The record, however*, dues not show, except by the averment of the motion for new trial, upon what day the case was placed upon the docket.

But the petition is defective in that it does not aver that the plaintiff has the actual possession of the land from the title of which a cloud is sought to be removed. In Gately v. Wilder, 12 R., 622, Judge Lewis, delivering the opinion of the court, said: “This being an action in equity to quiet the title of the plaintiff to the lot of land in dispute, it was necessary and indispensable for him to state in his petition that he was at the time in actual possession, which was not done, and the general demurrer oug’ht, therefore, to have been sustained.” So in Smith v. Gutliff, 9 R., 553, it was held that an allegation that plaintiffs were “legally” in possession of the land was but a conclusion of law, and was insufficient. In Whipple v. Earick, 93 Ky., 121, it was held that “To maintain this action the plaintiff must have both the legal title and the possession.”. There is a class of cases to which the case at bar does not belong, not strictly bills to quiet title, but in which the primary relief sought is a different one, in which a different rule has been applied. (See Packard v. Beaver Valley Co., 96 Ky., 253; Herr v. Hardin, 90 Ky., 379; Nat. Bank of Commerce v. Licking V. L. & M. Co., 15 R. 211; and Kant v. Hall, 15 R. 511.

. A further objection urged is that the judgment does not state what levy or sale or deed to appellant is adjudged null and void; nor does it in any -way identify the levy, sale or-deed, or describe or identify the property in which appellant was adjudged to have no interest, and there is considerable force in these objections, as well as in the objection that the petition does not sufficiently identify the execution, levy and sale. It is, however, unnecessary to pass upon this question, as the ease must go back for the reasons heretofore stated, and appellees will have an opportunity to amend their petition.

The judgment is reversed, with directions to set aside the judgment and award appellant a new trial and for further proceedings consistent with this opinion.