195 Ky. 766 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Previous to July, 1914, appellee, T. H. Hudson, bad defaulted as sheriff of Breathitt county, and on July 31st of that year judgment was entered against him and his several sureties, including Adam Hudson and J. M. E. Davis, on his official bond for several thousand dollars. Execution was issued upon the judgment against the property of principal T. H. Hudson and all of the sureties on the bond, including Adam Hudson and J. M. E. Davis, which execution was by Mat Spencer, then sheriff of Breathitt county, duly levied upon various tracts of real property, among them "being three or four lots belonging to T. H. Hudson in the city of Jackson, and one lot belonging to Adam Hudson adjoining those levied on as the property of T. H. Hudson. These lots were sold by the sheriff under said execution, at which sale J. M. E. Davis became the purchaser at the price of $1,200.00, being two-thirds of the appraised value of the property. He paid the cash and obtained from the sheriff a deed for the several lots. At the next term of the Breathitt circuit court, on motion duly made, the said sale was set aside because the lots levied on as the property of T. H.
*769 “You are commanded to expose for sale .the said property to the value of $1,200.00 with interest from the 22nd day of February, 1915, to-wit: ’ ’
(Then follows the description of the property to be sold.)
“Which according to our commands remains in the hands of the sheriff of Breathitt county unsold as shown by the order of the Breathitt circuit court entered on the 9th day of November, 1917, in 'Order Book No. 18, page 297, to satisfy Breathitt county, the plaintiff in said execution, the sum of $1,200.00 with interest thereon from the. 22nd day of February, 1915, whereof in the said Breathitt circuit court said Breathitt county recovered-executions thereon against said T. H. Hudson, Adam Hudson and others by virtue of a judgment against them in said court, and that you have said sums of money before the judge of said-count in Breathitt county, Kentucky, on the 16th day of June, 1919, to render the said plaintiff the debt, interest and cost aforesaid, and have then and there this writ.”
On the said writ the clerk made the following indorsements :
“By order of the Breathitt circuit court this venditioni exponas is issued for the benefit of J. M. E. Davis, and all rights thereunder are transferred to said J. M. E. Davis.” When this writ was, in May, 1919, placed in the hands of J. M. Roberts, then sheriff of Breathitt county, for. execution and collection said sheriff,' after causing the property to be duly appraised,- its value being fixed at $1,800.00, advertised the same, and in pursuance thereto sold at public auction to the highest bidder the several lots belonging to T. H. Hudson and one lot belonging to Adam Hudson, in the city of Jackson, at which sale the plaintiff, J. M. E. Davis, became the purchaser for $1,305.00 the amount of his debt, interest and cost. At this sale the lots belonging to T. H. Hudson were appraised and sold separately from that of Adam Hudson. Following this sale and on May 26,1919, Sheriff Roberts executed and delivered to the plaintiff, J. M. E. Davis, a deed for the several lots so sold. After obtaining bis deed the plaintiff, J. M. E. Davis, on May 5, 1919, prepared and had served on T. H. Hudson and Adam Hudson a notice that he, plaintiff Davis, would on Tuesday, October 14, 1919, at motion hour, move the Breathitt circuit court to grant him a writ of possession
It is the contention of appellees, Hudson and Hudson, that no officer, except Sheriff Matt Spencer, who had in his hands and levied the original execution, could execute and carry out a sale of the property under the writ of venditioni exponas under which the sale was made by Sheriff Roberts, and this irregularity vitiated the whole proceeding and this is, as we are informed by brief of counsel, the ground upon which the trial court set aside ■the sale made under the writ and cancelled the sheriff’s deed to appellant, J. M. E. Davis. This contention is apparently supported by the opinion of Colyer, etc. v. Higgins, supra, wherein it is stated that “according to the settled principles of the common law he who begins the execution of a writ of fieri facias must end it. A sheriff who levies upon property may sell it after the return day and after returning the execution, without a writ of venditiom exponas, and after he has gone out of office, and it is his duty to do so. (Cases cited.) And if he sells property he must convey it, though he may have gone out of office. . . . These principles, so far as they apply to the question under consideration, do not appear to have been changed by statute.” This opinion was written by Judge Bullitt for this court and delivered in December, 1863, but the controversy which it settled arose in 1852. At that time there was no statute allowing the plaintiff, or one subrogated to the rights of the execution plaintiff,
While the execution plaintiff may, when the sheriff resigns, dies or vacates his office, withdraw an execution or writ of venditioni exponas from his hands, or that of
For the foregoing reasons the judgment is reversed with directions to the lower court to set aside its judgment of January 29,1920, sustaining the demurrer to the proceeding for a writ of possession, denying said writ and quashing the writ of venditioni exponas, setting aside the sale and cancelling the sheriff’s deed to appellant Davis, and for proceedings consistent with this opinion.
Judgment reversed.