Goetz v. First Owensboro Bank & Trust Co.

Opinion op the Court by Judge Rees Affirming. This appeal is prosecuted from a judgment rendered in the Daviess circuit court on May 29, 1934, and is a part of the same judgment involved in the case of Alice Pettit’s Administrator v. Nick B. Goetz, 261 Ky. 107, 87 S. W. (2d) 99, this day decided. This appeal is from that part of the judgment which denied Nick B. Goetz recovery against the First Owensboro Bank & Trust Company in its individual capacity. A statement of the facts involved will be found in the opinion in the case of Alice Pettit’s Administrator v. Nick B. Goetz. Appellant contends that the First Owensboro Bank & Trust Company, administrator of Alice Pettit, deceased, distributed to the Pettit heirs the sum of $1,272, the proceeds of a sale bond executed by appellant in the case of Federal Land Bank of Louisville v. George F. Story et al., and which was later canceled because the sale was invalid after it received notice by the filing of Mary E. Story’s will of the defect in appellant’s title. Whether or not appellant would be entitled to recover from the appellee the amount paid to it as administrator of Alice Pettit, deceased, had appellant proceeded directly against the lienholders to whom he had paid the purchase money, need not be decided, since we have held in the case of Alice Pettit’s Administrator v. Goetz, that having elected to be subrogated to the rights of the lienholders he was not entitled to a judgment against Alice Pettit’s administrator for the difference between the amount paid by him after the first sale and the amount of his bid at the second sale. It follows that he was not entitled to a judgment against the administrator in its individual capacity, and the court correctly so adjudged. Judgment is affirmed.