October 10, 2012

Randall v. Ewell, et al., Laurel, 1900


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55 S.W. 552; 1900 Ky. LEXIS 582; 21 Ky. L. Rptr. 1425

February 28, 1900, Decided


Appeal from circuit court, Laurel county.

Action by Charles M. Randall against R. R. Ewell and others to recover possession of land. Judgment for defendants, and plaintiff appeals.


COUNSEL: J. A. Craft and J. W. Alcorn, for appellant.

Tinsley & Faulkner, for appellees.




 [*552]  PAYNTER, J. The earnestness of counsel for the appellee R. R. Ewell, together with their statements to the effect that a great wrong was attempted to be perpetrated  [*553]  against him, created a great desire on the part of the court to see that such an attempt should fail. Our diligence has not enabled us to make such a discovery. An execution was issued against R. R. Ewell on a sale bond which he executed and levied on certain of his real estate, including a house and lot in London. At the sale of the house and lot, the appellant, Randall, became the purchaser at the price of $101. An execution was issued against Ewell, and levied upon his equity of redemption in the property named, which was sold under it, and at the sale it was purchased for the benefit of the appellant. The sheriff reported the facts, and the executions were credited with the sums which the appellant had paid in satisfaction of the purchase  [**2] money due by reason of the purchase by him of the lot and the equity of redemption. The appellee failing to redeem the property, the sheriff executed a deed to him therefor. This action was instituted by appellant to recover possession of the property. It is insisted that the sheriff did not make a valid levy of the execution, because, as claimed, he did not levy it in either of the ways adjudged to be valid in the case of McBurnie v. Overstreet, 8 B. Mon. 304. In that case the court held that the office, should either go upon the premises and make an actual levy, or he should see the defendant in the execution or his agent, and obtain his consent that the execution be levied upon the estate, or he should apprise the defendant or his agent of the particular estate upon which he designed levying, and then make an official entry upon the execution, or a paper thereto attached, of the levy. The sheriff in this case did indorse the levy on the execution, and advertised the property for sale under it, as required by law. He had told the defendant in the execution that he would levy it upon his property unless he paid it, and the defendant was apprised of the fact that this particular piece  [**3] of property had been levied upon because, upon the date of sale, he endeavored to substitute other property in lieu of this piece of property and other property which the sheriff had levied upon, and have it sold in satisfaction of the execution. Failing to do what the law required to entitle him to have other property substituted, the sheriff proceeded to sell this property, together with the other property upon which he had made a levy. As the sheriff indorsed the levy upon the execution, and the defendant was apprised of it before and on the day of sale, we think that this was a substantial compliance with the law.

It is insisted that Randall never paid the purchase money. The sheriff made an indorsement upon the execution that he had paid it, and there is no complaint by the plaintiff in that execution that it was not paid to him. The defendant in the execution got credit for the amount of the purchase money which Randall agreed to pay, and his return upon the execution reported that Randall had paid him, and that the execution was entitled to a credit in that sum. The plaintiff in the execution has not complained of the manner in which Randall made that payment, and certainly the  [**4] defendant in the execution is not entitled to complain, as he received credit on the execution for the amount of the purchase money which Randall agreed to pay. It appeals that Ed Parker was under obligation to the plaintiff in the execution to pay the debt, provided Ewell did not pay it within a certain time. Parker purchased some of the land himself at the execution sale. Ewell failed to redeem it, but subsequently made an arrangement with Parker, by which he sold one of the pieces of land which Parker had bought at the execution sale, and paid him the amount of the debt due the plaintiff in the execution, Parker in the meantime having paid off the plaintiff's debt. If Parker did collect from the appellee Ewell the entire original debt, he was not entitled to do it, because it had been satisfied to the extent of the amount of purchase money which Randall had paid. Such a transaction between Ewell and Parker could not affect Randall's rights to the property which he had purchased at the execution sale. Randall was not a party to the transaction between Parker and Ewell.

It is complained that the plaintiff failed to show that the title to the house and lot was in appellee at the time  [**5] the sale was made under the execution. The issue formed by the pleadings did not necessitate such proof. While Ewell denied that Randall had title to the property, he claimed that he was the owner of it, and that he had not been devested of the title by reason of the sale under the execution. Under the pleadings, there was no issue of the kind suggested. We think the court erred in instructing the jury to find for the defendants. The judgment is reversed for proceedings consistent with this opinion.

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