Adams v. Conner

7 Ky. Op. 314, 1873 Ky. LEXIS 573

• Court: Court of Appeals of Kentucky
• Decided: September 20, 1873
• Status: Published

Opinion

Opinion by

Judge Lindsay:

This action can not be maintained, because it is based upon two judgments in personam against the personal representative of Edwin Adams, deceased, and not on the original cause or causes •of action, existing (if at all) against him at the time of his death.

Marshall & Bloomfield, for appellants. R. K. Williams, for appellee.

It is true that the petition states that the judgments against the personal representative were rendered for funds in the decedent’s hands as receiver in the case of Conner v. Conner et al.; but the amount of the funds so held, the orders under which he held them, and the party or parties to whom it was his duty to pay them, are matters left to be deduced alone from the facts recited concerning thé judgments against his administration.

Unless these judgments are accepted as sufficient evidence upon which to determine the liability of Adams’ heirs at law, then it is plain, the petition does not set out facts constituting a cause of action against them. The doctrine upon this point seems to be that in actions against heirs, devisees, or even fraudulent grantees, the debt against the ancestor, devisor or grantor must be established by original evidence against the party holding the property, independent of any proceeding against the personal representative of the debtor.

In this case the existence of the original debt is not sufficiently alleged; and the proof of the existence of any such original debt, consists alone of the record of the proceedings resulting in the judgments against the administrator. Judgment reversed, and cause remanded for proper proceedings. Appellee should be allowed to amend his petition should he desire to do so. In the present state of the case it is not necessary to notice the question of limitation.