92 Ky. 546 | Ky. Ct. App. | 1892
DELIVERED THE OPINION OF THE COURT.
Appellees, M. M. Griswold and the Citizens’, National Bank, having each recovered in this State judgment for debt against Blanton Duncan, instituted October 9, 1887, actions in the circuit court of Clark county, State of Indiana, to subject for satisfaction thereof his alleged interest in certain real property situated-therein, aud obtained judgments in rem sustaining attachments that had been levied, and for sale of said interest; but though a sale was advertised by the proper officer, it does not appear from the record before us to have-been made.
This action was instituted November 30,1889, by Blan
It is well settled that a party may maintain an action on the case and recover damages as well on account of a civil action as a criminal proceeding prosecuted against him maliciously and without probable cause. But, although it is alleged in this case the actions of appellees against Blanton Duncan were instituted and prosecuted in the Indiana court maliciously, the petition does not contain an averment in terms or substance of the want of probable cause, and consequently is defective; for as said in Cox v. Taylor, 10 B. M., 17, the want of probable cause for instituting an action must be stated in some form of' substantive averment, or at least be shown clearly in the petition.
It appears from the petition and exhibits filed that the
There is no question made of the justice of appellees’ debts; nor does Blanton, sole defendant of the actions in Indiana, state whether^ he was wronged or injured thereby, or seek recovery in his own behalf. But damage
We think the demurrer to the original petition was therefore properly sustained. But an amended petition was tendered, and the second question presented is whether the court properly overruled the motion to file it. In it the allegation is made in substance, that while Kate D. Lewis, or her trustees for her, were engaged in negotiations for sale of the property in question, appellees spoke in the hearing of persons about to purchase, the words: “Don’t buy any of that Duncan land; our attachments and order of sale bind it so that they can’t make a good title to it, and in a little while now we are going to have it sold and every dollar that you put into it will be sunk.”
Assuming, as must upon motion to file the pleading be done, that the words were spoken as set out, still having-been made in connection wifh the actions of appellees then pending against Blanton Duncan, and the judgment
Eor if a person may set up a claim of ownership to •real property, in opposition to that of an adverse claimant, without subjecting himself to an action for slander ■of the title of such adversary, we see no reason why a judgment creditor may not, with the same impunity, assert in good faith his right to have real property, or his •debtor’s interest in it, sold under a judgment rendered for that purpose, even if such assertion is made in opposition to the title claimed by another. In this ease the purpose •of appellees, as substantially announced, was to secure a fair sale under judgment of their debtor’s interest in the property, which might have been hindered or prevented by an absolute sale by Kate D. Lewis to third persons, not informed of pendency of their actions for that purpose, which was entirely legitimate. On the other hand, to hold that Kate D. Lewis, or her trustees, may maintain their action for slander of her title, when they might by becoming parties to the actions of appellees, or by another action, have obtained a judicial determination of their respective rights, it seems to us, would be a perversion of the object of legal remedies, and expose judgment creditors to useless and harassing litigation.
We think no cause of action was stated in either the ■original or amended petition, and the judgment dismissing the action is affirmed.