Walker v. McKnight , 54 Ky. 467 ( 1854 )

Judge Simpson

delivered the opinion of the Court—

There does not seem to be any valid objection to the equitable right asserted by the complainants to the land in contest. The execution of the bond by John Logan, and of the subsequent agreement of 1825, in which the right of Searcy to one undivided seventh of the land is expressly recognized, is fully established. The bond executed by Logan not only imports a consideration, but the bond on its face states the amount of the consideration, and admits its payment. There is no testimony tending to show that the contract was subsequently rescinded by the parties ; and the fact that the bond was not surrendered up creates an opposite presumption. The delay in prosecuting the claim is accounted for by the death of Searcy, in 1827. Besides, his heirs may not have been fully apprized of their rights, or may have supposed that as Logan had not made a deed in his lifetime, that the land was still subject to sale for the payment of his debts. Although, therefore, the claim was permitted to lie dormant for some ten or twelve years, yet it had not, in our opinion, been rendered unavailable by the mere lapse of time, if in other respects it can be sustained against the defendant, McKnight.

If McKnight has acquired the legal title to the land, we do not think that the complainants can compel him to surrender, and convey it to them on the ground that he had notice, before he obtained the title, of the existence of their equitable right to it. He denies, positively, that he had any knowledge or information on the subject, or had ever heard of their claim. Thurston is the only witness that proves notice, and'he is evidently interested in the result, and therefore incompetent. He is one of the original complainants, and therefore liable for the costs of the suit in the event that the complainants do not succeed in the suit. Besides, the release executed by Walker and wife is not executed in such a manner as to be obligatory upon the wife ; and if Walter should die, Thurston would still remain liable to her for contribution, in the event that she failed to recover the land in contest.

2. A party to the record of a suit in chancery, who is responsible for costs, is not a competent witness forother parties on the same side. 3. Salés of land under execution by a sheriff have been held to be, void only on cases where there was no judgment to sustain the execution, or where the officer exceeded his authority, by selling more land than was required for the payment of the amount duo upon the execution. It has not been adjudged that a sale is void because a part of the debt had been paid which .was not endorsed upon the execution.

Whether McKnight has acquired the legal title, depends upon the validity of the sheriff’s sale; for as we have not been furnished with a copy of the proceedings in the suit of Newton and wife against Logan’s heirs, after the decree was reversed, and the cause remanded to the Circuit Court, we cannot decide that he obtained any title to it by the decree and proceedings in that case.

The sale made by the sheriff was valid, unless he exceeded his authority in making it. He acts under the execution in his hands, and from it he derives his authority. If he sells more land than is necessary to satisfy the execution, he exceeds His power, and the sale is void. If there be no judgment, or if the execution vary substantially from the judgment, the sale will also'be void. But if there be a judgment, and the execution conforms to it substantially, the sale will be valid, although a part of the debt may have been paid, provided the payment does not constitute a part of the judgment, or has not been indorsed upon the execution.

An examination of all the cases on this subject will show that sales made by sheriffs have only been held to be void, either where there was no judgment to sustain the execution, or where the officer exceeded his power, by selling more land than was required for the payment of the amount due on the execution. All sales of lands made by sheriffs would be rendered uncertain if the principle were established that the sale would, be void if any part of the debt had been paid, although such payment did not appear upon the execution. No person would be willing to purchase at such a sale, and the operation of the rule Would be detrimental instead of ¡advantageous to the defendant in the execution.

4. The execution under which a sheriff made a sale of land was not returned. The only evidence of the amount required to be mad'e by the execution was the recitals in the sheriff’s deed to the . purchaser, which not showing that the sheriff sold the land for a sum exceeding the amount which he was authorized to make. Held — that the sale was not void. 5. The return of a sheriff upon an execution that he had made money upon the execution, and paid it to the plaintiff, is not evidenee of the fact of payment, or of the time of its payment, not being in response to any command of the writ.

The sale under which McKnight claims the land is therefore valid, unless the execution under which it was made had the credit indorsed on it, of the amount made upon a previous execution. The execution under which the sale was made has not been returned, and the transcript.of the record of the case in which it issued, does not show whether or not the the credit was indorsed upon it. Nor does that transcript show when the previous execution was returned, nor'is there any other evidence upon the subject, so that we cannot say with any certainty that it was returned before the execution upon which ’the rule was made was issued by the clerk. The only evidence of the amount of the execution, as well as of the sum for which the land was sold, is furnished by the sheriff ’s deed to McKnight. The execution as therein recited, does not show that any credit was indorsed upon it, nor is there any testimony that the sheriff sold the land for a sum exceeding the amount he was authorized to make upon the execution. If the presumption that ¡the clerk did his duty when he issued the execution should prevail, it would not avail ■ anything in this case, because a similar presumption arises in favor of the acts of the sheriff. And besides, as already mentioned, it is by no means certain that when the second execution issued, the first one had been returned, although we think it is very probable that it had been.

It does not appear whether the purchase by McKnight was made in person or by agent, nor do .we deem it very material, because there is no testimony that proves he had any knowledge at the time of the salé, that part of the judgment had been made upon the previous execution. The statement made by the officer in his return on the execution, that he had paid the money to the plaintiff, not being inresponse to the command of the writ, is not competent evidence to prove that fact. Besides, the statement itself does not show when the payment was made, and if competent evidence of the fact of payment, would not prove that it had been made before the sale, unless it appeared that the return itself had been previously made.

greater'1UB mm than was necesgary to pay the balance due upmentí'16Held— that the plaintiff be 6regarded°Uas cess'oí the^and which was not necessary to sat isfy the sum due on the judgment m trust 'for the benefit an equityh^the land sold. 6. A plaintiff in execution purchased a tract of land under execution; the sale

The purchase, therefore, made by McKnight, cannot be deemed void, and the sheriff’s deed must be regarded as investing him with the legal title. But the question still occurs, as the sale was made for a sum exceeding the amount actually due to him on the judgment, shall he be permitted to hold the title thus acquired, or will a court of equity set aside and va_ , cate the sale. There can be no doubt that it might have been quashed by the court that had the control 0f the execution, and the right to regulate the proceedings thereon, if a motion for that purpose had ^een ma¿e ha reasonable time. But a court of equity will only interpose and vacate such a sale upon the .i , jt ground oí fraud, or some other equitable ground. In this case we think that the purchaser should be re- ' . ■r . garded m equity as holding the title in trust for the beneffi of the complainants, to so much of the land embraced by the purchase as was not paid for by the balance due on the execution. The price for which .the land sold was one hundred and thirty dollars. The amount due upon the execution was ninety-six dollars. For thirty-four one hundred and thirtieths (34-130) of the land purchased, the purchaser did not pay anything. The title to this part of it he should be regarded as holding in trust for the benefit of the complainants. There does not seem to have been any fraud in the transaction, nor is there any other equitable ground upon which the purchaser ought to be deprived of the whole benefit of his purchase.

The land will have to be divided, and 34-130 of it laid off and conveyed to the complainants. In making the division, the part allotted to the complainants should not include any improvements made by McKnight, if the division can be thus made without doing injustice to them. If a just division cannot be made without assigning to the complainants part of the land improved by McKnight, then an account will have to be taken of the improvements on the part so allotted to them, according to equitable principles.

Wherefore, the decree dismissing the complainants bill is deemed erroneous, and is reversed, and cause remanded for further proceedings, and decr’ee in conformity with this opinion.