Whitesides v. Brien's

Court of Appeals of Kentucky

Whitesides v. Brien's

5 Ky. Op. 11, 1872 Ky. LEXIS 157

DecidedMarch 19, 1872

StatusPublished

This text of 5 Ky. Op. 11 (Whitesides v. Brien's) 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

Whitesides v. Brien's, 5 Ky. Op. 11, 1872 Ky. LEXIS 157 (Ky. Ct. App. 1872).

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Opinion

Opinion by

Judge Peters :

The cause set forth in the petition to vacate the judgment of the 11th of June, 1868, is not embraced in Sections 579 nor 373 of the Code of Practice. And unless one or more of the grounds therein enumerated existed for modifying, or vacating the judgment, the court below had no jurisdiction of the case.

But we do not perceive how appellants were prejudiced by the judgment. They certainly had no legal title to the land, either in fee, for life, or for a term of years, if the same was held under the wills of Whitesides and McCracken, as appears to be the case from the record before us. The" legal title passed by the will of Whitesides to McCracken — and by his will Brien [12]*12was constituted trustee to hold the legal title for appellants. And under Sec. 1, Art. 13, Chap. 36, 1 Vol. R. S., p. 482, their beneficial interest in the land was not subject to sale under execution. Especially could not the trustee sell under an execution to pay his own debt.

/. B. Husband, Scott, for appellant. Gilbert, for appellee.

Let the judgment be affirmed.

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Opinion by

Judge Peters :

The cause set forth in the petition to vacate the judgment of the 11th of June, 1868, is not embraced in Sections 579 nor 373 of the Code of Practice. And unless one or more of the grounds therein enumerated existed for modifying, or vacating the judgment, the court below had no jurisdiction of the case.

But we do not perceive how appellants were prejudiced by the judgment. They certainly had no legal title to the land, either in fee, for life, or for a term of years, if the same was held under the wills of Whitesides and McCracken, as appears to be the case from the record before us. The" legal title passed by the will of Whitesides to McCracken — and by his will Brien [12]*12was constituted trustee to hold the legal title for appellants. And under Sec. 1, Art. 13, Chap. 36, 1 Vol. R. S., p. 482, their beneficial interest in the land was not subject to sale under execution. Especially could not the trustee sell under an execution to pay his own debt.

/. B. Husband, Scott, for appellant. Gilbert, for appellee.

Let the judgment be affirmed.

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Bluebook (online)

5 Ky. Op. 11, 1872 Ky. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitesides-v-briens-kyctapp-1872.