13 Ky. Op. 807 | Ky. Ct. App. | 1885
Opinion by
The administrator of Wm. E. Perry brought this action against the heirs of the intestate to settle the estate. It consisted of but a small amount of personalty, and about three hundred thirty acres of land. It was shown by a commissioner’s report that the indebtedness amounted to something over $3,500, and this mainly consisted of a mortgage debt upon the land created subsequent to 1878, amounting, as reported by the commissioner, to $2,138.66. The record fails to show that any of the indebtedness was created prior to April 9, 1878, when the act was passed authorizing the
It appears, however, that all the land was sold without any appraisement. The appellant, James E. Cantrill, became the purchaser of it at $7 per acre, amounting in all to $2,343.25, or but little more than the mortgaged debt. The administrator and some of the creditors excepted to the rule for alleged inadequacy of price, and want of an appraisement, and upon the alleged ground that the land had not brought two-thirds of its value. The heirs, however, consented to and asked that it be confirmed. The purchaser resisted the effort to set it aside, but the court did so, and he alone has appealed.
It is evident that the land did not bring its value, and the evidence is conflicting as to whether it brought two-thirds of it. It is urged that, as the land was sold under a consent decree, the act above named did not apply, and that no appraisement was required, as it was not a judgment directly against the debtor. It provides, however, “That before any real estate shall be hereafter sold in pursuance of any order or judgment of a court, the commissioner or officer whose duty it may be to sell the same, shall cause it to be valued. * * * The valuation so made shall be in writing, signed by the persons making it and returned by such commissioner or officer to the court which made the order or rendered the
It is said that this should not be ground for annulling the sale if it appears that the property in fact brought two-thirds of its value. If this were so then it could equally be urged that a judicial sale, not advertised, or otherwise made in violation of the law, should not be set aside because it does not appear that the property would have brought more if'it had been legally sold. The valuation of the appraisers prior to the sale is the test fixed by the statute of the right to redeem; and it was not intended that it should be governed by testimony heard after the sale upon the question of its confirma
The creditors whose debts were created prior to April, 1878, are not complaining of the action of the lower court, and in fact at least one of them quieted it by uniting in the exceptions to the sale. It is unnecessary, therefore, to decide whether an appraisement is necessary in a case where land is being sold for the payment of debts, some of which were created prior to April, 1878, and others after; moreover the property in this instance was first liable for the mortgage debt, which was created after the passage of the act of April 9, 1878.
Judgment affirmed.