Thompson v. McAfee

Court of Appeals of Kentucky

Thompson v. McAfee

7 Ky. Op. 28, 1873 Ky. LEXIS 403

DecidedJune 24, 1873

StatusPublished

This text of 7 Ky. Op. 28 (Thompson v. McAfee) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. McAfee, 7 Ky. Op. 28, 1873 Ky. LEXIS 403 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Pryor :

It is well established by the facts of this record that the resale of the land at the instance of Whittingwill was made for the purpose of defeating the right of the creditors of McKinny as fixed by the [29]*29decision of this court upon the appeal of McAfee’s Ex’r v. McKinny and Others. The judgment of the court below setting aside the sale to Thompson the purchase was therefore proper. The latter had notice through his agent at least, who made this purchase for him, of the object the parties had'in view in having this sale made. The court below erred, however, in requiring- the appellees to pay the costs. The party Whittingwill, upon whose application this sale was ordered, and who seems to have silently acquiesced in the sale of this land at $100 to satisfy his debt of five hundred, when it was worth not less than twelve hundred dollars, should have been adjudged to pay the costs. If Thompson has paid the purchase land, sold and conveyed it in his own name and that of his wife, to money to Whittingwill the latter must refund it to Thompson with the interest. As the appellant Thompson is liable for the costs as between himself and those of the appellees who were plaintiffs in the amended petition and Whittingwill is liable to him and is before the court as an appellee he should be made liable for the costs to Thompson on the amended pleading in the court below. The other questions made by counsel for the appellees who are plaintiffs in the amended petition as against Whittingwill, can not be considered on the cross-appeal as cross-appeals can not be granted between coappellees. The questions can only be made on an original appeal. The judgment of the court below is affirmed on the original appeal and reversed on the cross-appeal. Wm. Thompson is liable-for costs to the plaintiffs in the amended petition, who are appellants here, and Whittingwill should be made liable to Thompson. Cause is remanded for further proceedings consistent with this opinion.

P. B. Thompson, Jr., for appellant. C. A. Hardin, for appellee.

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Opinion by

Judge Pryor :

It is well established by the facts of this record that the resale of the land at the instance of Whittingwill was made for the purpose of defeating the right of the creditors of McKinny as fixed by the [29]*29decision of this court upon the appeal of McAfee’s Ex’r v. McKinny and Others. The judgment of the court below setting aside the sale to Thompson the purchase was therefore proper. The latter had notice through his agent at least, who made this purchase for him, of the object the parties had'in view in having this sale made. The court below erred, however, in requiring- the appellees to pay the costs. The party Whittingwill, upon whose application this sale was ordered, and who seems to have silently acquiesced in the sale of this land at $100 to satisfy his debt of five hundred, when it was worth not less than twelve hundred dollars, should have been adjudged to pay the costs. If Thompson has paid the purchase land, sold and conveyed it in his own name and that of his wife, to money to Whittingwill the latter must refund it to Thompson with the interest. As the appellant Thompson is liable for the costs as between himself and those of the appellees who were plaintiffs in the amended petition and Whittingwill is liable to him and is before the court as an appellee he should be made liable for the costs to Thompson on the amended pleading in the court below. The other questions made by counsel for the appellees who are plaintiffs in the amended petition as against Whittingwill, can not be considered on the cross-appeal as cross-appeals can not be granted between coappellees. The questions can only be made on an original appeal. The judgment of the court below is affirmed on the original appeal and reversed on the cross-appeal. Wm. Thompson is liable-for costs to the plaintiffs in the amended petition, who are appellants here, and Whittingwill should be made liable to Thompson. Cause is remanded for further proceedings consistent with this opinion.

P. B. Thompson, Jr., for appellant. C. A. Hardin, for appellee.

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Bluebook (online)

7 Ky. Op. 28, 1873 Ky. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-mcafee-kyctapp-1873.