43 Ky. 142 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
This was a motion to quash a sale under execution, on the ground, among others, that the slave which was sold, was not legally vendible under the execution; and the Court having quashed the sale, the only question which need be considered in revising that decision is, whether the slave, or any interest in him, was legally vendible under the execution. It appears that on the 30th of October, 1841, William Robinson, the plaintiff in the motion, mortgaged to Turner a tract of land and all his slaves, among which was Dave, the one now in question, and also all his personal estate, to secure the payment of a debt to him, and also to indemnify the mortgagee for becoming his surety, as he was about to do, in replevying an execution in favor of Smith against Robinson, and also in another case. On the 7th day of December, 1841, William Robinson martgaged to E. G. Robinson, the same slaves and several tracts of land and other interests, to indemnify him in assuming a large debt due from the mortgagor to Busk; and on the same day, E. G. Robinson mortgaged the same propeity to Busk to secure the said debt. On the 3d day of May, 1842, an execution issued on the replevy bond of Robinson and Turner to Smith, referred to in the first mortgage, and was levied on the negro, Dave, who was sold, subject to the mortgages, and Bronston became the purchaser at $76 25.
There is no doubt that under the 36th section of the execution law of 1828, a general creditor who is wholly
We are of opinion, therefore,,that the Court did not err in quashing the sale; and as the proper consequence of the quashal was, that Robinson was entitled to restitution, the order to that effect was also proper. , Nor,-as we suppose, is there any substantial ground of objection to the accompanying direfction or intimation, that this order should supersede an order made in' the chancery suit of Bush against these and other parties, for the restoration of the same slave by Robinson to Bronston, from whose possession the slave, held under this execute had been taken under the original attachmen; Bush’s bill, and hired by the Sheriff to Rob? effect of the whole is, that if Robinson had the possession to Bronston, under the Chancel was not to do it, and if he had done it, Broniio make re-delivery. It was all substantially rigi the sale being quashed, the foundation of claim to the possession wholly failed. And even it tire reference to the Chancery order and the apparent interference with it weie technically wrong, and if both orders should have been left to be executed, each without reference to the other, the effect would have been, that Robinson would have delivered . the slave to Bronston, under the Chancery order, and Bronston must have re-delivered him under the subsequent common law order in this case. And whatever may be said of Robinson’s being thus authorized to 'disobey the Chancery order, there can be no substantial prejudice to Bronston in authorizing a dispensation with the formal act of delivery and re-delivery, which would leave the possession just where it is,'if the Chancery order has not been obeyed ; and if it has been obeyed, the reference to it in this case is wholly inoperative.
We suppose Turner was notan indispensable party to the motion; and even if the costs should have been adjudged against Bronston and Smith jointly, the latter having been a necessary party to the motion, because he was plaintiff in the execution, that is a question between Bronston and Smith, and is notan available error against
Wherefore, the judgment is affirmed.