xt70zp3vt865_234 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Howard, Bessie et al. v. Taylor, Park L. et al text Howard, Bessie et al. v. Taylor, Park L. et al 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_22/Folder_22/0613.pdf 1931-1936 1936 1931-1936 section false xt70zp3vt865_234 xt70zp3vt865 _,“fi
HARLAN CldCUlT COURT
BnSSlE HGHARD,ET AL, PLnlNTlFF,
luau/midi ‘1‘: : QE‘lNlON ~ v
PARK L. TAELCK, ET AL, - DEFENDANT.

This suit was filed in the Harlan Circuit Court on October 15, 1936
by the widow and heirs at law of Britt Howard, including the wives and/
or husbands of the children and heirs at law of Britt Howard, against
Park L, Taylor and his wife, Bertha Taylor, it being alleged that Bertha
Taylor was a daughter and heir at law of Britt Howard and that she refus-
ed to Join as ilaintiff in the case,

The relief sought in the petition was the division of the lands there~
in mentioned and described; the allotment of dower to America Howard; the
cancellation of a deed to E. L. Taylor, recorded in Deed Book 70, page
335, and of the Judgment entered in the case of First State Bank of Harlan,
against America Ho ard and others and in favor of said bank and Park L.
Taylor, recorded in Civil Order Book 31, page 267 of the records of the
Clerk of the Harlan Circuit Court; and for an accounting against the
defendant, Park L. Taylor, for the rents and profits received by him from
said lands since may 2, 1932. The proceedings referred to in said petition
are attached as being VOide

The answer of Park L. Taylor and Bertha Taylor asserts title and owner»
ship of said land to Mr. Taylor and relies upon the proceedings in the
case of First State Bank of Harlan, against America Howard etc., as the
basis of his title to said preperty.

Britt Howard departed this life on December 19, 1930; thereafter, on
the 24th day of December 1930, P. L. Taylor, the defendant herein, was
appointed administrator of his estate; and on January 19, 1931, Park L.

«1"

 Taylor was appointed guardian for Asher Howardg then 18 years of age, and
y for Bessie Howard, then 15 years of ago, Mr. Taylor qualified as adminis—
trator and as guardian upon the respective dates. Thereafter, and on hay
4, 1931, and within less than six (6) months after the appointment of the
administrator, the First State hank of Harlemhentucky9 filed its' suit
in the Barlen Circuit Court, against America howard, nary Lowe and Ed Lowe,
Lucy Shackleford and Earl Shackleford and P. L. Taylor and Bertha Taylor,
R. C. Harrixs and Verde narris, Elvin Eunley and Lizzie hunley, Robert
Boward,-Aeher Howard, Bessie Howard and J. S. Forester, alleging that on
October 30, 1930, Britt Howard as principal and E. L. Taylor and J. S. ‘
Forester as sureties by their promisary note, date October 30, 1980, promis-
ed and agreed to pay to the said bank the sum of $2869.03 which note became
_ due on April 30, 1931 and no part of the same had been said; that the said
note was a renewul of a note previously executed by the some parties and
that on July 2, lQBO, while suid note was in existence9 Britt Reward and
his wife, emeriCa howord, executed and delivered to the defendants. Park .
L. Taylor and J. S. Forester. a mortgage upon the tract of land mentioned
and described in the petition to secure the payment of said note. It is
alleged in the petition that said mortgage is filed but the mortgage does
not appear in the record. The bank asserts a lien upon the tract of land _
by reason thereof.

it is alleged in the petition that Park L. Taylor was guardian of
Asher Howard and Bessie Howard but there is no allegation in the petition
that they have no guardian, curator or cemmittee residing in this state

' other than the defendant, Park L. Taylor; and Park L. Taylor as guardian
of said infants or as administrator of the estate of Britt Howard, deceased,
is not a party plaintiff or defendant in said action.

On August 3, 1931, Park L. Taylor filed his answer and cross petition
in the office of the Clerk of the Harlan Circuit Court but in the caption
thereof it is not indicated against whom the cross petition is filed. In
this pleading, which was filed on Rule day, it is alleged that Park L.

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 Taylor was the guardian of the infants, usher Howard and Bessie Howard,
but it is not alleged that said infants had no other guardian or no curator
or comnittee residing in this state known to the said Park L. Taylor; and

A Perk L. Taylor as guardian of said infants and Park L. Taylor as Adminis—
trator of the estate of Britt Howard, deceased, is not made a party defend»
ant therein. gggg pleading is not gggigigd.

In the purported cross petition, Park L. Taylor asserts a lien upon
the land described in the tetition for $2892.07 with interest from Febru~ ‘
ary 2,1931 and certain taxes paid by him and $248.25 with interest from
December 19, 193Q alleged to have been paid for burial expenses, and asserts
a superior lien to the lien of the bank for the payment of said items.

On August 19, 1981, there was filed an answer of F. L. Huff, guardian
ad litem, but there no where appears in the record before me, any order
appointing hr. Huff es guardian ad litem. In his answer, hr. huff states
that he has £§§9 the petition 33d ggpsg petggigg igmthie gggg and finds
that there is no defense that can be made for the two said defendants, Asher
Beward and Bessie Howard; but there is no report or answer filed by the
guardian ad litem stating that ggtgg ggggfiu; giggiggtigg g: the page, he is

' unable to make defense; and this is the duty imposed by guardian ad litem
by section 36 of the Civil Code.

No proof of claim as to any of the indebtedness mentioned and set out
in the petition, or in the purported cross petition, appears in the record;
no testimony was taken in the case; and in this state of the record. a de~
fault Judgment was rendered against all of the defendants in the case on

V August 19, 1981, ajudging the bank the first and superior lien for its
debts and rerk L. Taylor a second lien upon the property for the amount
claimed by him and directing a sale of the property by the Master Commission-
er. Ihe property was sold on October 5, 1931, at which time dalter Taylor
became the purchaser in the sum of $2869.03 with interest from April 30,1931,
end Park L. Taylor signed Said bond as surety. On April 1, 1932, ralter
Taylor assigned his bid to Park L. Taylor and pursuant to such assignment,
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 commissioner's deed was executed to Park L. Taylor on May 2, 1932.

The claim asserted as to the $2392.07 is predicated upon a deed
executed by J. H. Blair, sheriff, to Park L. Taylor, recorded in Deed Book
68, page 317. in said deed the proceedings to support the same and out-
lined from which it appears that on thg lZEQ ggymofi figyggpg; igsg, execut—
ion No. 6301 was issued from the office of the Clerk of the Harlan Circuit
Court, against Britt howerd and Park L. Taylor for the sum of $2244.26
with interest from the second day of September 1930, until paid; that the
same was placed in the hands of the sheriff and that the sheriff levied
said execution on Egg glgyegph ggy g: figyggpeg igggp upon the property
mentioned and described in said deed (and which is the same property mention-
ed and described in the petition in the case of First State Bank of Harlan
against America Howard etc.); that Britt Howard died on the 19th day of

, December 1930, and that the property was sold by the sheriff on Monday,
February a, 1931, when Park L. Taylor became the purchaser thereof in the
price of $2392.07. Aside from the peculiar statement in the deed that the
execution which was issued on November lg, iggg was leyied upon the lands
on November ll,mlg§9, eight days before it is issued by the Clerk or
delivered to the sherifi,it no where appears in said deed that the lgyy
of said execution was revived against the heirs at law of Britt Howard in
the manner provided in Sec. 407 Civil Code.

This deed was not filed with or as a part of the purported cross petit
ion nor were the tax bills, claimed to have been paid by Taylor for Britt
Howard, filed with the purported cross petition, but they are filed in the
pending case.

In the pending case it is claimed that no sumnons was served upon any '
of the plaintiffs herein and from the testimony in the record, the court
is not at all satisfied that summons was served upon any of the parties to
the petition of the First State Bank of Harlan other than upon Bessie How»
ard, Park L. Taylor, Bertha Taylor and J. S. Forester and upon a portion
of the defendants in the purported cross petition, but it is not necessary
to rule upon thst question.

i _4_ .

 u -\ .'

Many other questions are brought into the record by the pleadings
and amended pleadings for both ;laintiffs and defendants in the pending

suit and a voluminous record of pleadings and testimony has been built
up both for ;laintiffs and defendants.

According to the views of this court the rights of the parties de~
pend upon the regularity of the proceedings had in the case of the First
State Bank of narlan against America Howard etc.9 and it is not necessary
to pass upon any other question herein other then the regularity of the
proceedings therein.

The proceedings for the sale of infants‘ interest in reel estate for
the payment of any debts of liability of his ancestor with which he may m:
legabily chargeable ere governed by See. 428 e t seq. and iSQ of the Civil
Code end in all respects these essential steps should at least be substani—
ally complied with; that the code provisions relative to such sale, heve
not been conglied is apparent from an inspection of the record in the origi-
nal suit. None of the sverments required to be contained in the petition
by See. 429 of the code aogear in the original petition or in cross ;etition
and no proof whatever was taken or offered in support of or to establish
either of the claims ajudged against the lands of the ancestor. No proof
of claim was filed with the administrator. The administrator was not made
a party to the action either plaintiff or defendant, in his representative
capacity. he was made a party defendant in his personal capacity but his
personal interest was antagonistic to his representative interests. There
is no verified pleading or affidavit in the record authorizing the spgoint—
ment of a guardian ad litem and the answer filed by the purported guardian
ad litem does not meet the requirements of the Code. I

The matters required to be plead by See. 429 of the Code are requisite
to give the court jurisdiction of the subject matter.

Two of the defendants in the case were unmarried at the time of the
rendition of the attacked judgment, and therefore under the dendatory terms
of Civil Code Sec. 126 all of the material allegation of the petitions were
required to be proved before the court became authorized or acquired Juris—

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 .,_. I ; '

U
diction to enter the attacked judgment; and the record in the case of First
State Bank of Berlen, against America Howard and others being Silent as to
these requisite allegetione and proof. LL follows thee the judgment of the
fierlan Uiecuit Court entered therein was null and void and that the defend—
ant, Fara Lo Taylor,acguired no title to the lands mentioned and described
in the ;etition hereifi by reason of sale held pursuent to the jufigmen: in
said actiona (See: quner et e15 v9 Eeoylee‘ Builéing and Loan Aeeoeiation
492 Ky. 691, 167 3 H (;d) 8&5. Harrison et e1g v. Kellemen et e19 293 Ky.
687, 16’? ; (.2361) 82:8.) ' ‘

Judgment may be entered in conformity to the epinion herein expressed
and the case referred to the Easter Commiesiener or to e special ceumiseia}o
er, agreed upon by ahe Lerties, for an accounting by the defeedent, bark
L. Taylor”

This opiflion to be made a pert of the record without being egreefi at
large noon the order books of the court.

.. ”:;:—J mmM¢MK.J
”f;7L-§E§Zial Judge
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