59 Ky. 433 | Ky. Ct. App. | 1859
delivered the otinion oe tiie court:
This case was formerly before this court, and the opinion then delivered, as reported in 1 Met. Ky. Rep., 169, is referred to for a full statement of the facts upon which the controversy arose.
On the return of the case to the circuit court, the appellants offered to file amended answers, setting up various distinct grounds of defense, the substance of which may be thus stated:
1. They insist that the writing by which Ditto gave up to the sheriff the land in contest, to be sold under the execution which had issued on the void forthcoming bond, conferred upon the sheriff an authority to sell the land, and that the sale made by the latter under this authority passed to the appellants the title to the land, and gave them a right of entry upon it.
2. They say that the execution in favor of Winterbower against Ditto and others, being in the bands of the sheriff, and Ditto being indebted in the amount mentioned in the execution, authorized the sheriff to receive from the appellants the sum
3. They allege that they entered upon the land in good faith under their purchase, and under the deed executed to them by the sheriff, and that after such entry they made valuable and lasting improvements upon the land, an account of which, amounting to $262, they exhibit, and for which they ask judgment against the plaintiff.
4. Reiterating all the foregoing facts, they say the estate of Ditto is insolvent, and if they shall be compelled to surrender the land in contest, an irreparable injury will result to them. They therefore move that the case be transferred to the equity docket, and ask that the sale made by the sheriff under the surrender of Ditto be confirmed, and that the heirs at law of the latter be compelled to convey the title. They insist that, in any event, they have a lien on the land for the sum paid by them to and for the use of Ditto, as before stated, and for the value of the improvements so made by them.
The court below refused to permit the filing of these amended answers, and the appellants excepted.
There was a trial upon the general defense of “ not guilty,” and a verdict and judgment against the appellants for $125 in damages, and from that judgment they have appealed.
The action of the court below in rejecting the amended pleadings offered by the appellants, presents the first and most important subject of inquiry. And whether the court properly refused to allow the filing of those pleadings, must of course depend upon the sufficiency of the several matters of defense which they set up.
First, then, as to the effect'of the written surrender by Ditto of the land in contest to be sold under the execution against him and others then in the hands of the sheriff.
It will appear, from the facts stated in the former opinion, before referred to, that this question was before the court upon the record as it then stood. And the question was then consid
We have no doubt of the correctness of the opinion then entertained, that the execution of this writing did not operate to impart any validity or legal force to the execution, or to the sale made under it.
By the Revised Statutes, a defendant in an execution, owning several tracts of land in the same county, may, by writing, direct the officer to make the debt out of such of the tracts as he may designate. Or he may, on the day of sale, by writing, direct the property levied on to be sold in any succession he may desire; and he may produce other property, or the title to land in the county not levied, and by writing direct the same to be sold, &c. (Art. 13, sec. 8,p. 325; art. 14, sec. 4,p. 326.)
The execution of the writing by which Ditto surrendered the land in contest, to be sold under the execution, must be regarded as the mere exercise .of this right conferred by the statute. To give to it the effect contended for, of sanctioning and ratifying an illegal and void sale, and of estopping the defendant in the execution from afterwards impeaching .the validity of the execution and sale, by showing that both were void, would be a manifest and gross perversion of the statute.
In the case of Perry vs. Hensley, (14 B. Mon., 474,) it was decided that where a bond had been voluntarily given for the forthcoming of property not subject to the execution which had been levied upon it, such bond was not obligatory upon the obligors, upon the ground that the necessity for its execution had been produced by an illegal act, and therefore it might with propriety be said that its execution had been induced by legal coercion, and could not, for that reason, be regarded as an implied admission that the property was liable for the debt.
Upon the same principle may it not, with still more obvious propriety, be said that the execution of the writing in this case was procured by legal coercion ? Or does it afford any stronger ground for implying a ratification by the defendant of the illegal and void act of the sheriff than did the voluntary execution of the forthcoming bond in the case cited ?
But where, as in the present case, the sheriff has no legal authority to seize or to sell any part of the estate of the defendant — where he is attempting to enforce an absolutely void process, and the defendant, under the coercion to which he is thus subjected, designates a particular parcel of land upon which the levy is to be made — is it not seen at once that this principle of estoppel, and the reason and policy on which it is founded, can have no sort of application ?
We adhere to the opinion, therefore, that the appellants acquired no title to the land in contest under the purchase at the sale made by the sheriff.
2. But the appellants, in some of the amended answers which they offered to file, presented at least.a valid equitable defense. They paid the amount of the execution, and thereby satisfied Ditto’s debt to Winterbower, and Ditto became bound in equity to reimburse them. It is alleged that the estate of Ditto is insolvent, and this necessarily implies that he was insolvent in his lifetime. The appellants’ demand did not constitute a valid counter claim under the Civil Code ; nor did it constitute a valid legal set-off, because at law liquidated demands only can be set-off. ([Hanna, &C., vs. Pleasants, &c., 2 Dana, 269.) But under the former practice the appellants would undoubtedly have been entitled, upon the facts set forth
The appellants are entitled to no relief upon their claim for improvements, all of which appear to have been made after the institution of this action, which placed them in the attitude of .trespassers. The improvements could not, therefore, have been made in good faith.
Other points were relied upon in the argument which it is not deemed necessary to notice specially, as the record discloses no other available error to the prejudice of the appellants.
The judgment is therefore reversed, and the cause remanded for further proceedings not inconsistent with the principles of this opinion.