Minor v. Withers

9 Ky. Op. 512, 1877 Ky. LEXIS 301

• Court: Court of Appeals of Kentucky
• Decided: June 22, 1877
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The evidence does not show that G. H. Withers was to convey to Mrs. Minor a separate portion of the land sold. The conveyance was read to and understood by the husband, and the appellants must be held to have accepted it.

But the lien as to the note sold to Rodes and afterwards renewed, can, according to the tenor of the deed, extend no further than for the security of the payment of three hundred and twenty dollars, “with interest.” The balance of the note imposes a personal obligation on Minor; but the land cannot be subj ected to its payment, and so far as it is so subjected the judgment in favor of Withers is erroneous.

G. H. Withers and the children of John N. Withers, and John B. Swope, are each and all appellees. They cannot prosecute cross-appeals against each other. A cross-appeal can only be prosecuted by an appellee against an appellant. If appellees have conflicting interests and are dissatisfied with the judgment, they must proceed against each other in this court by original appeals. In this view of the case we cannot consider the complaint of G. H. Withers against the children of John N. Withers, nor that of said children against John B. Swope.

The facts that appellants moved the court below to correct certain supposed errors, and that their motion has not been disposed of, do not preclude them from prosecuting this appeal. The motion was not to correct a clerical misprision, and they had the right to abandon it and seek relief by an appeal to. this court.

The judgment in favor of G. H. Withers for the use of the children of John N. Withers is reversed and the cause remanded for the correction of the error heretofore pointed out. The appeal as against Swope is affirmed, and in the cross-appeal of G. H. Withers against the Minors the judgment is also affirmed.