136 Ky. 54 | Ky. Ct. App. | 1909
Opinion op the Court by
— A ffirming.
J. Mac Cotton’s executrix obtained a ' judgment against B. F. Cotton. On June 13, 1908, execution was issued thereon, directed to the sheriff of Madison county. The execution was for the sum of $2,228.80, with interest from December 15, 1903, subject to a credit of $741.60, with interest from the same date. This amount was exclusive of costs and commissions. Upon receipt of the execution the sheriff proceeded to levy the same upon a tract of land, containing about 74 acres, as the property of B. F. Cotton. The sheriff thereupon advertised the property for sale on July 6, 1908, that being a regular county court day. The advertisement was in all respects as required by law, except that he failed to advertise in any newspaper. The property in fee was appraised at $3,300. Before the sale was had, it was found that the property was subject, to a prior mortgage in favor of Curtis F. Burnam, which, at the time of the sale, amounted to about $2,007. As defendant (Cotton’s) wife was living, the property was also subject to her contingent right of dower therein. The
On November 18,1908, the defendant, B. F. Cotton, served notice upon the plaintiff in execution that he would, at the coming February term, 1909, of the Madison circuit court, move to set aside the sale. Thereafter, on February 3, 1909, he filed his motion to quash the execution sale upon two grounds: (1) The land sold was not advertised as required by law. (2) The land was sold in gross, and for more than plaintiff’s debt. A general demurrer was filed to each of said grounds and overruled. Thereupon evidence was adduced by both parties. The court ordered the sale set aside for the reason that the property was not advertised as required by law, and for the further reason that the sheriff realized on said sale more money than was necessary to satisfy plaintiff’s debt, interest, and costs, subject to the lien debt and interest of Curtis F. Burnam. The motion and grounds for a new trial were overruled, and J. Mae Cotton’s executrix appeals.
Section 14a, Ky. St., is as follows: “That in addition to the notices now required by law to be posted all public sales of any hind of property, when sold un-' der execution, judgment or decree, shall, unless otherwise agreed upon by the parties to such execution, judgment or decree, be advertised in some newspaper published in the county of such sale, if any newspaper be therein published at least once a week for three consecutive weeks, next preceding the day of sale: Provided, that in counties where there is a
In considering this statute this court held, in the case of Bank of Cerulean Springs et al v. Cardner et al., 121 S. W. 608, that a failure to comply with the statute did not render the judgment of sale void, but was ground for setting aside the .sale where exceptions were properly filed thereto. That being the case, it follows that, where the sale is not made' under o. judgment of'court, but in pursuance of an execution, the failure to advertise the property as required by the statute- is ground for setting aside the sale, where motion is made for that purpose within the proper time. In the case before us the purchaser had taken no steps to enforce his lien at the time of the filing of the motion, and we, therefore, conclude that the motion to set aside the sale was made in time, and the court properly held that the sale should be set aside for the reason mentioned.
We likewise conclude that the second ground relied upon by the court for setting aside the sale was sufficient. The property in question was incumbered. The sheriff made the sale under section 1709, Ky. St. Under that section the purchaser does not acquire title to the property. He simply acquires a lien on the property for the purchase money and interest at
Counsel for appellant contend that the action of the sheriff in receiving a bid in excess of the debt, interest, and costs is authorized by section 1675, Ky. St., which provides that, if the property is sold for cash in hand, any, excess after satisfying the execution, charges and commissions shall be paid over by the officer to the defendant whose property is sold. That section, however, has no application to sales made as provided by section 1709; it applies only to sales where the property is not susceptible of division, and the title passes by virtue of the sale. As stated before, the purchaser under section 1709 acquires no title, but simply a lien.
But it is insisted by counsel for appellant that it was the duty of the sheriff to sell the property for the highest price. That is true, but, where property is susceptible of division and is sold under section 3 709, the highest price is a bid to pay the debt, interest, and costs and take the least number of acres. The sheriff and one other witness claim that the sheriff asked for a bid to pay the debt and take a less number of acres than the whole tract. This, however, is denied by witnesses for appellee. But taking the statement
We, therefore, conclude that the action of the trial court in setting aside the sale was proper. Upon the return of the case, appellant may have the property resold as herein directed.
Judgment affirmed.