King v. Welch's Adm'r

9 Ky. Op. 482, 1877 Ky. LEXIS 282

• Court: Court of Appeals of Kentucky
• Decided: June 14, 1877
• Status: Published

Opinion

Opinion by

Judge Cofer:

No authority is cited and none is known to this court which sustains counsel’s first proposition, which is, in substance, that a trustee to whom property is conveyed by -an ordinary deed, upon trust for a third person, vacates his office by removing from the state.

This court certainly knows judicially that there is no courthouse in the town of Crab Orchards. But we do^ not agree with counsel in their reading of the directions given in the judgment in regard to advertising the property ordered to be sold. The clerk has punctuated it so as to read as if it was written as follows: “At the courthouse door, and in the town of Crab Orchard,” etc., and that is no doubt correct.

We are not aware of any statute or rule of the common law which malees the removal of an administrator from the state operate ipso facto to vacate his office. If a personal representative shall reside out of the state he shall for that cause be removed. Sec. 19, Art. 1, Chap. 39, Gen. Stat.; Art. 1, Chap. 37, Rev. Stat. But until removed he remains in office and his right to it cannot be collaterally questioned.

The answer did not contain a counterclaim or set-off. The item of $300 mentioned is distinctly pleaded as payment, and cannot therefore have been a set-off. The averment in regard to rent received by the decedent is blank as to amount, and even if taken for confessed establishes nothing more than that Welsh had received three hundred dollars, and in addition thereto-dollars rent. Three hundred dollars make but $300. It is true the answer goes on to say, “being really more than the whole amount named in the mortgage, with interest on the same at the rate of ten per cent, per annum,” but the whole averment, when taken together, means no more than that Welsh received $300, and blank dollars which amounted to more than the mortgage debt. There was nothing in that averment sufficiently definite to warrant the court in adjudging that the decedent was indebted for rent a sum sufficient to 'satisfy the debt sued for. An account or other demand pleaded as a set-off must be so definitely stated that the court can render judgment on the pleading. That.could not have been done in this case, and the plea of set-off could not for that reason be taken for confessed.

R. M. & W. O. Bradley, for appellant.,

It is not important whether the appellant had the legal title or not. She had an unquestionable right to mortgage such interest as she had, and will not be allowed to defeat the appellee’s right by setting up her own want of title.

No discrepancy between the boundary .as stated in the amended petition and in the judgment has been pointed out, and we do not perceive any that necessarily renders them inconsistent with each other.

Judgment affirmed.