Dyen v. Brownfield , 1868 Ky. LEXIS 412 ( 1868 )

Opinion of the Court by

Judge Williams:

There can be but little doubt but that the purchasers knew the exact situation of the title to the slaves, the. family relationship, and the fact that one of them, who also acted as agent for others, was the clerk of the court in which the proceedings were had, and must be presumed to be familiar with the papers of the cause, and he being a brother-in-law and boarding at the same house with J. A. Middleton, who lived with his mother, and who was the only joint interested party with N. H. Middleton as heir of their deceased father, strongly fortifies this presumption, and precludes any supposition that an actual fraud was perpetrated in the sale by the commissioner, and the fact that the purchasers repared from the year 1863, when the purchase was made, until the year 1865, when it was quite evident that slaves would be freed by constitutional'amendment, still the more impresses the mind that this is an attempt to escape from an unfortunate purchase. The petition of the appellees seeks to set aside their purchase and for a perpetual injunction against the collecting their sale bonds exe-

It is sufficient to say his ‘brother and mother were parties defendcuted for the purchase price, ujion two grounds mainly, that is, that N. II. Middleton was not either actually or constructively, before the court, and that he had no interest in the slaves because of an agreement between him and his brother and mother.

It is sufficient to say his brother and mother were parties defendant to the attachment suits and are bound by the adjudications therein, which is binding upon them until reversed, and they are thereby estopped from setting up any adverse title inconsistent with said injunction. On the other defense it will suffice to say that N. H. Middleton had an interest in protecting the sale which cancelled his indebtedness to his creditors to the extent of the sale and purchase, and therefore he was an essential party to the appellee’s injunction suit, and before any cancehnent of the purchasers’ bonds should be granted in any view of the case he should be made a party and brought before the court, there is no reason assigned for not making him a party.

Bead & Murray, for appellant. 'Wintersmith, Gofer, for appellee.

When he shall have been made a party and seek to confirm or reject said sale by the commissioner, it will be sufficient time to determine whether the proceedings to subject his interest in the slaves were a nullity or only erroneous as to him.

The dissolution of the temporary injunction pending the litigation could not affect the ultimate right of appellees to a perpetual injunction on the final trial for they could have sued, prayed for, and obtained this without asking for or obtaining the temporary injunction to operate during the litigation. For the error suggested the judgment is reversed, with directions to the parties to amend their pleadings so as to make W. H. Middleton or his representative a party defendant upon pain of dismissal of their petition, unless some legal reason for not doing so shall be assigned.