35 Ky. 271 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
This was an action of ejectment brought for the recovery of two adjoining lots in the town of Hardinsburg. The plaintiff declared in two counts, one on the joint demise of Crow and Jarvis, the other on the separate demise of Crow. Addison and Calhoun were made defendants in the place of the casual ejector; and a verdict and judgment having been rendered against them, they have appealed.
On the trial of the cause, it was proved that, in April, 1832, an execution upon a judgment of the Circuit Court of the United States for the district of Kentucky, against Samuel Algeo, being in the hands of the Marshal of Kentucky, was levied on the two lots in question, as the property of Algeo — they being then in his possession; that on the 10th of May and 7th of June of the same year, the levy remaining in force, Algeo executed two mortgages to Crow and Jarvis, of which both embraced the same lots, and the second one was duly recorded. In March, 1833, a suit in chancery, for the foreclosure of the mortgage, was commenced by Crow and Jarvis, against Algeo, and on the 15th day of July, 1833, the lots having been previously advertised by the marshal, and valued according to law, were, by the request of Algeo, in writing, but not under seal, sold together, under a writ of venditioni exponas, and by virtue of the judgment, execution and levy above referred to. At this sale, Addison, being the highest bidder, became the purchaser, at the sum of one thousand seven hundred dollars, of which four hundred and sixty-three'dollars sixty-three cents, being all that was due on the execution, was secured by bond to the plaintiffs in the judgment, and the residue was immediately paid to or set
The defendants had, also, at the proper stage of the trial, moved for instructions as in case of a non-suit, but
The material questions arising upon the evidence, and the instructions given and refused, are: First. Supposing Algeo to have had the legal title — did it pass by the mortgages, or either of them, executed after the levy under the execution and while it was in force? Second. Was the sale and conveyance by the Marshal void? and if so, can its invalidity be taken advantage of in this suit? And, third — is the possession of Algeo, as above stated, such a title, or such evidence of title, as authorized a recovery in this action — supposing the plaintiff to have been invested by the mortgage and commissioner’s deed with such title as Algeo had? Fourth. A fourth question is, also made, upon the admissibility of evidence offered by the defendant. We shall consider these questions in the order in which they have been stated.
First. Several dicta of this Court may. be found which apply to the first of these questions. But upon an examination of the cases, it will be seen that they are not entitled teethe weight of judicial authority upon the point. And so far as we have discovered, it has never been judicially determined by this Court, what precise effect the lien created by the reception of a. fieri facias into the officer’s hands, or by his levying it upon land, has upon the title, and upon the power of alienation. It has, however, been decided, with regard to personal property, that notwithstanding the lien in favor of an execution in the officer’s hands, the owner of the property may, by a sale of it, pass the legal title to the vendee, subject to be defeated by a subsequent levy and sale un
The question then arises, as to the effect of a levy. Does it ipso facto divest the defendant of his title, or prevent a transfer of it, or does it leave the title in him, with the power of transferring it, subject to be defeated by a valid sale under the execution? The levy of a fieri facias upon land of the debtor undoubtedly renders the lien more specific, and being a necessary step in the execution of the writ, completes the authority of the officer to sell, and has the further effect of giving continuance both to the authority and the lien, which would otherwise expire with the return of the writ. And we do not perceive any necessity or reasonable ground for ascribing to it any other efficacy than this.
In levying upon moveable property, the officer takes or may take it into his possession. He is bound to have it forthcoming for the purposes of the execution, and may take a bond for securing that object, or may maintain an action in his own name for the asportation or conversion of the property, and, on making sale, he de
The sole purpose of the law in declaring a lien in favor of executions, is to secure the object of the execution against the effect of any subsequent alienation of the land by the debtor. To do this, it holds the land subject to all regular proceedings under the execution, and ultimately to sale and conveyance, notwithstanding any such alienation. This is, in fact, the essence and extent of the lien. It is not necessary for the effectuation or security of its objects, to say that it actually disables the debtor from alienating his land, and renders such alienation absolutely and to all purposes void. It is sufficient that such alienation is wholly inoperative as
This view is in perfect accordance with the decision in the case of Harrison vs. Wilson, above cited, and with the principle declared in the case of Miller vs. Riley, 1. Dana, 360; where the Court say: “The executions having come to the sheriff’s hands before the conveyance from Burgen (the debtor) to Million, they, therefore, acquired a prior lien, which necessarily caused the subsequent sale and conveyance to Riley (under the executions) to overreach and avoid by relation, the conveyance to Million. Such (continues the Court) has been, the uniform effect given to subsequent levies and sales under executions, when they came to the hands of the officer prior to the alienation of the defendant. This is most obviously necessary in order to effectuate the lien in favor of the execution secured by statute, from the time it reaches the officer’s hands.”
In the case of Lock and Fleming vs. Coleman, 4. Mon. 316, it is intimated that, the intermediate alienation of the defendant in the execution, during the existence of the lien, may be void as fraudulent; and in the case of Butts vs. Chinn, 4. J. J. Mar. 641, the Court say, “as a
We are of opinion, therefore, upon authority, as well as from our own convictions, that notwithstanding the levy of the execution upon the lots now in contest, the mortgages from Algeo to Crow and Jarvis, invested them with such title as he had, subject to be overreached and defeated by a regular sale and conveyance, under the execution, but not by any void proceeding.
Second. We come, therefore, to the question whether the sale and conveyance were void. More land having been sold than was necessary to satisfy the execution, and no circumstance connected with the condition of the property being shewn, which justified the sale of the
It was also decided in the case of Patterson vs. Carneal's Heirs, supra, that the voidness of a deed on this particular ground, may be first shewn and declared ywhen the deed is exhibited by a party on the trial of an action of ejectment, though never before determined in any direct proceeding. And as the Court in which this suit was commenced, had complete jurisdiction over the case both with respect to the parties and to the land which was the subject of controversy, and had, therefore, jurisdiction to decide every question which might arise, and which could appropriately be decided in the action of ejectment, it unquestionably had the right to decide, and therefore was bound to decide, this question as to the validity or invalidity of the sale and deed of the Marshall, though it relates to the act of the Federal officer in executing the process of the Federal Court. That Court has, of course, the exclusive right to control and correct its own records and the acts of its officers. But without intermeddling with this right, the Court in which this action was commenced, and this Court, as the revising tribunal, have, as unquestionably, the right to decide the present question, as it arises in the action of ejectment. And in doing so, they must look to the construction given by this Court, to the statute authorizing
Unless, therefore, the Marshal had some other sufficient authority, besides the execution and the statute, to justify the sale and conveyance of the two lots, his deed was properly decided to be void by the Circuit Court, and must be so declared here.
The additional authority consists of the written direction and request of Algeo, to sell both lots together. It seems obvious, however, that unless Algeo was in fact the owner, of the land, or might be so regarded by the officer and the plaintiff or purchaser, for the purpose of authorizing the sale, the authority derived from him however formal it might have been in its own character, was wholly ineffectual to authorize a sale of land which did not belong to him. The question then is,—could Algeo be considered as the owner of the land for the purpose of authorizing a sale to a greater extent than was required or authorized by the execution?
It has already been decided that his mortgage to Crow & Jarvis passed his legal title, subject to the execution. But although, for the purposes of the execution, he was still to be considered as the owner of the land, yet, as the purposes of the execution extended no farther than to authorize a sale of so much land as might be necessary for its discharge, he could not, on that ground, be considered as the owner of any more of the land than was necessary for that purpose, and could not, therefore, have any right to authorize the sale of any more. The mortgage could not obstruct, or interfere with, the regular operation of the execution, or any rights growing out of it; but on the other hand, the execution did not confer any rights, or impose any restrictions, but such as were necessary and appropriate for its own legitimate purpose of satisfying the debt out of the land. It was not necessary, for the purposes of the execution, that the defendant therein should have the right to consent to the sale of more land than was necessary to satisfy it, and as he had parted with his title, as far as he could do so by mortgage, neither the plaintiff in the execution, nor the officer, nor any other person, had a right
The equity of redemption, it,is true, remained in him after the mortgage, but that did not authorize him to consent to a sale of the whole of the land. Nor was it the equity that was in fact sold, or that was directed to be sold. And if it had been, he had no right to give such direction, and the sale as to that, would have been inoperative, as a suit for the foreclosure of the mortgage .was then pending.
But supposing that he could have given, and did give, a valid authority for the sale and conveyance of his equity of redemption — such authority would have given no aid to the sale and deed under the execution, but would have produced the same uncertainty and confusion which would have existed without it, and on the ground of which the sale, without it, would have been void. For so far as the deed rested upon such authority, it would convey no legal title, it could have no relation back, it would, in fact, be inoperative against the mortgage and the purchaser under the decree. What effect might be given to a deed presenting such a confusion of dates and interests and operations need not be conjectured. Being certainly ineffectual to pass the legal title to a large but undefined portion of the land, it must be deemed ineffectual, as against the mortgagee, to pass the legal title to any portion of it. On every ground, therefore, the sale and deed must, in this contest, be considered as ineffectual to pass any legal title, so as to overreach and defeat the title derived under the mortgage. It is scarcely necessary to add, that the subsequent deed of confirmation, being the private act of Algeo, posterior to the mortgage, and the suit for its foreclosure, can avail nothing.
Whether the lien in favor of the execution is extinguished, or may be revived by the quashal of the return, as to the sale &c., or what remedy in law or equity the purchaser, or the creditor, may have, need not be decided in this case.
If the lien was extinguished, it formed no longer any incumbrance on the mortgage title, and could
Third. We proceed, then, to the third question above stated, viz: Is the possession of the mortgagor, prior to the date of the levy and of the mortgage, and continued down until delivered to the defendants, such title, or evidence of title, in Algeo, as to authorize a recovery, by the plaintiff, holding that title, against the defendants, coming into possession by the subsequent act of the mortgagor. In the cases of Campbell vs. Roberts, 3. Marsh. 623-4, and in Locke & Fleming vs. Coleman, Butts vs. Chinn, and Million vs. Riley, above cited, it is in substance decided that, as between the purchaser under an execution, and the defendant therein, the possession of the latter, prior to the levy of the execution, is, prima facie, sufficient evidence of title in the defendant before the sale, and in the purchaser afterwards, to authorize a recovery in ejectment by the latter. And it seems to us that, on the same principle, the defendant, if he is out of possession, in consequence of a void sale and deed under execution, might recover in ejectment against the purchaser, or his aliepee, on the same evidence. And that, as the defendant might recover on this evidence, so might his alienee; and so might his prior alienee against his subsequent alienee; which is the present case.
The. question, on this part of the case, is not whether the deiendants are precluded from controverting the title of Algeo, or his prior alienee, but whether the
Fourth. In addition to the evidence which has beep stated, the defendants, for the alleged purpose of showing that Algeo had no title when he executed the mortgage, and when the lots were sold by the Marshal, offered to read an order of the County Court of Breckinridge county, made in 1801, purporting to establish the; town of Iiardinsburg, and to vest the title in Trustees, who are not named. But this evidence being objected to by the plaintiff, was rejeoted as inadmissible; and the propriety of this rejection, presents the last question to be considered. Waiving all enquiry into the efficacy of this order, and supposing it to have invested the Trustees with the title — we are of opinion that it was properly rejected: because, Addison, having come into possession under Algeo, the mortgagor, by his consent, and in fact by contract with him, as is to be assumed from the facts as stated above, deriving no aid from the Marshal’s sale and deed, and showing no title in himself
There being, in our opinion, no error in the proceedings and judgment, to the prejudice of the appellants, the judgment is affirmed.