66 Ky. 60 | Ky. Ct. App. | 1867
delivered the opihion of the court:
Appellee having obtained a judgment in equity ,to nforce a lien upon lands of appellant for purchase price, appellant, at the succeeding term of the court, and before the sale was made by the commissioner, filed a petition alleging several grounds for a new trial, but
The commissioner proceeded to advertise and sell the land subsequent to the filing of this petition for a new trial, and B. M. Burdett became the purchaser.
At this sale appellant notified the crowd, that if any rebel or secessionist bought his land, they would buy a law-suit, and this prevented persons who wanted the land from bidding. Subsequently, appellant brought suit against the appellee and the commissioner to recover damages for sacrificing his land.
Before the trial of this action he compromised with the purchaser, by which, in consideration of some six hundred dollars paid to him more than the price bid at the sale, he and his wife conveyed by deed the land to the purchaser, and dismissed his petition for a new trial.
Having obtained no injunction as to the execution of the judgment, the filing a petition for a new trial at a subsequent term did not operate as a suspension of the judgment; therefore, neither the plaintiff nor commissioner perpetrated any illegal act by proceeding as therein • directed to execute the judgment, and hence would not be responsible for any sacrifice of the land by reason of a proper and legal execution of it.
Appellant was not, therefore, entitled to damages, even if his own conduct had not contributed to a sacrifice ; but especially was he not entitled to any when, by his own acts, he contributed largely, if not entirely, to that sacrifice. ■ .
As neither the plaintiff nor commissioner proceeded illegally to execute the judgment, appellant’s sole remedy was by proceeding to vacate the judgment and sale, and having confirmed them by his compromise with the purchaser, he is without further remedy.
Wherefore, the judgment is affirmed.
