Chambers' Administrator v. Hays

45 Ky. 115 | Ky. Ct. App. | 1845

Judge Marshall

delivered the opinion of the Court.

The 13th section of the act of 1828, (Stat. Law, 639,) authorizes the Sheriff to sell land under execution, on the first day, and on no other day of the Circuit or County Couit of the county. This construction was given to the statute in the case of Allison vs Taylor’s heirs, (3 B. Monroe, 366,) and we are satisfied that such is the clear import of the language used. -The Sheriff therefore, had no authority under the law, to sell on any other day of the Meade Circuit Court but the first. The statute requires the written consent of both plaintiff and defendant, to authorize a sale even on the first day of a Court, when ten days have not intervened since the levy; and in analogy to this requisition and to those cases which decide that there must be a writing to authorize the sale of more land than will satisfy the execution, we think that to authorize a sale on any day of the Court subsequent to the first, there must be the written consent of both parties, or such acts of each as would estop him from afterwards questioning the sale. The statute in prescribingthe time of the sale, intended to secure, for the benefit of each party, that publicity and competition of bids which would best subserve the honest purposes-of each; and neither party can, by his own act, dispense with the prescribed guarantees of a fair sale to the prejudice of the other. The presence of the defendant and his acquiescence in the sale of 200 acres of land for ten dollars, on the sixth day of the Court, can have no effect upon the plaintiff’s right of objection. But it appears that the plaintiff’s attorney knew that the Sheriff intended to sell on that day, and although he was not present and did not know the precise time when the sale would be made, and did not know that it was going on when it was in fact made, yet as he made no objection to the day, it is insisted this was a waiver of that objection, binding on the plaintiff. But whatever right the attorney may have had to bind the plaintiff in this respect, it does not appear that he ever assented to the sale being made on that, day, or that he was placed in such circumstances as required that he should openly object. He might have bad-no objection to the day provided there should be a reasonable attendance of bidders, and a fair open sale, at which he might have an opportunity of attending to the interests of his client; or he might have left the Sheriff, who does not appear to have consulted him, to act on his own responsibility, knowing that upon a fair sale, his client’s debt would be satisfied. It- appears that although he was in the Court House at the time of the sale, the Sheriff did not apprise him that it was then to take place. This circumstance, together with the defendant’s acquiescence in what seems to be an enormous sacrifice of his property, give some ground for the inference that he has received the benefit of the sacrifice, to the injury of the plaintiff, and that the actual moment of sale, and per. haps the day of sale, may have been chosen for that purpose. But be this as it. may, we think there was nothing to preclude the plaintiff from afterwards objecting to the sale, as unauthorized either by the law' or by his consent. Nor was his motion barred by the lapse of between two and three years from the sale. It is true he might have levied afterwards on the defendant’s right of redemption, but this would have been an acknowdedgment of lha Validity of the sale which he was not bound to make, or it might have involved the subsequent proceedings in the question of the validity of the first sale. And although it is not shown that the plaintiff’s debt has not been since satisfied, yet as he was injured at the time by the illegal sale, it was for the other party to show that he had lost his right of quashing that sale, by the subsequent satisfaction of his debt.

The defendant in an execution isa necessary party* to a, motion to ^uasíi a sale for irregularity.

J. C. Walker for plaintiff: Harlan fy Craddock for defendants.

We are of opinion, therefore, that the plaintiff had a right to have the sale quashed on motion, because it was made on a day not authorized by law. But in order to avail himself of this right, he should have.made the defendants in the execution parties to his motion, which he has omitted to do. For this omission, however, the motion should have been overruled without prejudice and not absolutely.

Wherefore, the judgment is reversed and the cause remanded, with directions to overrule the motion without prejudice to any other motion for the same cause.