10 Ky. 280 | Ky. Ct. App. | 1821
delivered the opinion.
The aneestor of the appelles having obtained a judgment at law, in an action of covenant, against Charles Jones and Charles Beeler, issued execution and levied on the interest of Charles Beeler, of and in a tract of land, and sold that inierest, became himself the purchaser, and received the conveyance from the sheriff. This interest was the undivided sixth part of a tract of land, the legal title of which was in Beeler’s ancestor at his death, and then descended to him jointly with five other heirs. Having thus acquired the title, he exhibited this bill to obtain a division of the tract, and to have his part assigned to him in severalty, making the remaining heirs, some purchasers under them, and Charles Beeler, defendants. All these defendants made default, except John C. Beeler, one of the heirs, and the purchasers under him, and two infant defendants. J. 0. Beeler alleges claim to the whole ground, first, by a verbal gift from his father before the descent cast; and secondly, by a mortgage and foreclosure thereof, and sale under it, executed to him the said John C. Beeler, by the said Charles Beeler, including all his interest in his father’s estate. The defendant* also contend in their answers, that the sheriff’s sale was irregular — that the estate was sold far below its value, and is therefore unconscientious — and that Charles Beeler, against whom the execution issued, was an infant when he made the contract on which judgment was
Besides other objections to the sale, the sheriff’s deed was objected to on the trial, as not conformable to law. We do not perceive the ground of this objection. The deed fs an indenture executed both by the principal sheriff and the deputy, who made the sale, and is acknowledged and recorded in the proper office, and recites the execution with sufficient precision, and sets forth the sale accordant with the return. It wa3 therefore properly admitted, as containing the requisites of the act of assembly.
It is relied on, that Charles Jones, one of the defendants in the execution, had sufficient personal estate and slaves to satisfy the execution, instead of taking the land. defence is not fully supported bv the prbof. If he had such estate, it is evident that it was difficult to find it, and that it was kept out of the way of creditors, and Bullitt, by pre-vfous executions, had searched for both estate and person, But if this fact be admitted, it will not follow that the sale Was vitions. The law directing, first, chattels, then slaves, and lastly, land, tobe taken, is directory to the sheriff. he violates it to the injury of the debtor in an execution, he toay become responsible for that injury. But it-does not result that the purchaser oflands so taken under execution, even if he be the creditor, who has not been instrumental in Gausing the sheriff thus to violate the law, is to have his title affected, especially after he has tried by other fruitless executions to reach other estate before he touched the land, The remaining objections to this sale, are also untenable. The defendants seem to mistake the law, so far as to suppose that the plaintiff claiming under a sale by execution, is bound to shew that all the requisites of the law, in making the sale, has been complied with, instead of placing the mus prebmdi on the other side, and compelling him who opposes file sale to prove it irrregular. The appellants have called on the appellees for proof of the regularity of the sale, and have adduced no proof impeaching it,
The infancy of Charles Beeler, at the date of the contract. on which the judgment at law is founded, may admit of two answers. Charles Beeler himself, in the trial at law, waived this privilege and did not plead bis infancy,
Acts in pais by an infant, may frequently be void; but not io as to judicial acts. They are obligatory upon him, unless he avoid them by direct process, such as a writ of error coram vobis, audita querela, fyc. If these methods are not resorted to, he is bound by the record and estopped from gainsaying it, when its effects ate brought to bear upon him in any other controversy. Such we conceive to be the judgment of Bullitt, arid as it is not vacated by the infant, he is bound by it in all other controversies, and so is his alienee, John C. Beeler.
The title of John C Beeler, by gift from his father, ¡9 wholly unsupported by proof, and his title by mortgage and foreclosure from Charles Beeler must be his remaining de-fence. This mortgage is executed, acknowledged and recorded in propertime, and a decree of foreclosure and sale to John C. Beeler under it, is produced. But to this decree, Buliit was no party, and not only the mortgage, recorded as it is, but the decree and sale under it, must be as void as to creditors under the act to prevent frauds and perjuries, as any other security, if it is made with intent to delay^y hinder, or defraud creditors.^ To prove that this deed and decree is of that character, the appellees have established the following facts, to wit: That Bullitt himself was then pursuing his claim & was near to judgment against Charles Beeler — That Charles Beeler was considerably indebted and embarrased at the time the mortgage was executed. It is rendered very improbable that John C. Beeler had with Charles Beeler, any dealings at the time, from which a debt of near five thousand dollars, the sum expressed in the mortgage, could have arisen. R is shewn, that no money was paid, or any other valuable thing, at the date of the mortgage, and that John G. Bcekr produced an amount of fifteen hundred dollars against Charles, as his whole claim,
It has been contended in this cause, that the claim of the appellees is purely legal, and therefore equity ought not to enforce if- — That they have a legal remedy, and therefore ought not to be indulged in a court of equity. It must be admitted that the claim of the appellees is a legal one, and that by law their ancestor acquired his right; but we do not admit, that this is a bill to enforce the sheriff’s sale, or give the appellees a title under it. The sale and consequent title was vested long before this bill was brought, and Bul-litt became a tenant in common with the remaining heirs of Beeler, and as such, had a right to demand partition. IF he knew or believed that John C. Beeler’s mortgage was fraudulent, he did right in treating it as a nullity and selling the estate, and lie afterwards ought to be allowed to shew it such, either at law or in equity. T his bill, we conceive, is a bill for partition, and that the obstacles to it, have arisen from the fraudulent claim of the appellant, John C. Beeler, which was properly disregarded. No doubt, a court of common law is competent to render judgment of partition or severance; but with the court of common law, equity has claimed and exercised concurrent jurisdiction in directing partition, and then compelling titles to be made in confirmation of it, and we see no reason why the appel-lees or their ancestors should be precluded from resorting to that mode, barely because he acquired his title by a sale and conveyance directed by law. The effect of it was the same, as if acquired in another mode. As he has had his election, to come either into a court of law or equity, and bas chosen the latter, the result has proved that this ehotce Was wise, as he bas thereby had the opportunity of extinguishing forever, the pretended title of John C. Beeler, un-, der his mortgage.
It is contended, that as two of Beeler’3 heirs were infants, and a guardian was assigned to defend them, the eourt
