Opinion
January 13, 1942.
Appeal from Boone Circuit Court.
Ward Yager, Judge.
William C. Goodwyn, J.F. Williamson, Theo. W. Bates and Vest Vest for appellant.
S. Gaines for appellees.
Reversing.
We have this day decided in the case of Federal Land Bank v. Allender's Adm'r, 289 Ky. 565, 159 S.W.2d 1, a suit to settle an estate, that it was error to order the sale of the real property on which the bank had a mortgage, free of its lien. The facts in this case are substantially the same as those in the Allender case, with one exception, which will be discussed hereinafter. In that case we said that a fair determination of the question would be for the judgment ordering the sale to direct that the commissioner first offer the property for sale for a bid in an amount sufficient to satisfy the bank's claim in full, plus all costs of the action, the property to be sold free of the bank's lien, and in the event no such bid is received that the property be sold subject to the lien. The opinion in the Allender case is controlling here. See also Federal Land Bank v. Lafferty, 289 Ky. 569, 159 S.W.2d 3.
Judgment was entered in this case before the guardian ad litem for the infant defendants filed his report. This was a misprision. Subsection 2, Section 517, Civil Code of Practice. See also Section 516 of the Civil Code of Practice. This error should be corrected upon the return of the case.
Judgment reversed with directions that it be set aside and for the entry of a judgment consistent with this opinion.