125 Ky. 424 | Ky. Ct. App. | 1907
Reversing.
Appellants held certain bonds áiid mortgages which had been assigned to them by the German American Title Company. Appellees brought this action to have the mortgages and bonds canceled for fraud in their procurement; Appellants answered deuying that the bonds and mortgages were procured by fraud and praying their enforcement. The circuit Court adjudged appellants the relief sought, and appellees appealed to this court, where the judgment was reversed; See Deppen v. German American Title Company, 70 S. W. 868, 72 S. W. 768, 24 Ky. Law Rep. 1110, 1876. Before the case was determined in this court, the judgment of sale Was executed. At the sale part of the property was bought by the Louisville Banking Company, and part by a third person. After the reversal of the judgment, appellees filed an •amended petition seeking to hold the appellants liable for damages On the sale of their property. The case was heard on this amended petition, and, judgment having been entered against the appellants for the value of the land at the time of the sale, the appellants appeal.
The case of Hays v. Griffith, 85 Ky. 375, 3 S. W. 431, 11 S. W. 306, 9 Ky. Law Rep. 65, which the circuit court appears to have followed, was overruled in Bridges v. McAllister, 106 Ky. 791, 19 Ky. Law Rep. 107, 51 S. W. 603, 4 L. R. A. 800, 90 Am. St. Rep. 267. In that case the court, among other things, said: ‘ ‘ The judgment was the act of the law. Neither party could control the court, and neither was responsible for his actions. The law constituted a
The rule is elementary that in a' judicial sale the court is the vendor, and that in selling it acts as the agent of the defendant, compelling him to do what it determines he ought to have done. In making a judicial sale, the court does not act as the agent of the plaintiff. The court acts by authority of the law of
The fact that no precedent can be found for a greater liability, in the entire history of the courts of England, is potent evidence that at common law a greater liability did' not exist. Were the "rule otherwise, there would be no need for the appellee ever to supersede a judgment to prevent the sacrifice of his property where the appellee is solvent; but in all cases he .might let the law take its course, assured that in any event he would suffer no loss, and if successful on the appeal might punish his adversary with great loss. Such a rule would have a tendency to prolong and produce ligitation, and it would make the enforcement of judgments which are not superseded so hazard
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Petitions for rehearing and extension of opinion overruled.'