51 Ky. 231 | Ky. Ct. App. | 1851
delivered the opinion of the Court. The sheriff having sold more land than the execution against Isaacs authorized, his sale and deed though verbally authorized and directed by Isaacs, were ineffectual to pass the legal title to Gearhart, the purchaser. This was decided upon the same deed, in the case of Gearhart vs Tharp, (9 B. Mon. 35,) and seems to be a necessary consequence of the principles laid down in Pepper vs Commonwealth, for Thornton, (6 B. Mon. 27,) and Addison vs Crow and Jarvis, (5 Dana, 271,) and
The Court instructed the jury peremptorily, to' find for the defendant; and it is contended in support of the judgment in his favor, that under the circumstances which have been stated, Isaacs was estopped from asserting title against Gearheart, who had been induced by his express authority and active participation to make the purchase and pay his money for the land. These circumstances undoubtedly created an equitable estoppel. They made the sale obligatory, lipón Isaacs as his act, and bound him to perfect it by a conveyance of his title, which he offered to,do. But they did not authorize the sheriff to' make the conveyance as his private agent, and they did not and could not give validity to his deed made in his official character as sheriff, and not in the name of Isaacs. His authority as sheriff is derived from the law and the process in his hands. And although while he keeps within the limits
The parol authority given by Isaacs to the sheriff, though sufficient to authorize the latter to execute a -writing for the sale of the land which would be binding upon Isaacs, was not sufficient to authorize a transfer of the title by deed even in the name of Isaacs. The return of the sheriff and his deed, though made in his official character, and not as the attorney of Isaacs, may in equity be deemed sufficient written evidence of a sale under the authority of Isaacs, whose consent to it is expressly shown in the deed. But the acts of Isaacs, though they bind him as a party to the sale, can have no greater effect in passing the title by estoppel, than similar acts accompanying a parol sale, or an executory sale evidenced by a writing signed by himself. In either case, though he might have induced the purchases by pursuasion and received the whole purchase money and placed the purchaser in possession, he would not thereby have been estopped at law from asserting his legal title and right of entry in an action of ejectment.
The case of Reed vs Heasley, (2 B. Monroe,, 254,) relied on to show that there was an estoppel in this case, was decided upon a principle not applicable to the facts now presented. Here the plaintiff, the debtor in the execution, relies upon the record of the sale to show that the defendant acquired no title by his purchase
The instruction given by the Circuit Court cannot therefore be justified on the ground of estoppel. And as there is some evidence from which the jury might have inferred that Isaacs had been in possession of the land and that the defendant had acquired the possession from him, which would have been prima facie evidence of a previous title in Isaacs sufficient, if not transferred or otherwise lost, to authorise a recovery, the instruction could only be sustained on the ground that the circumstances under which Gearheart had obtained and held the possession, were such as entitled him to hold on, until there was a notice to quit or demand of the possession.
If he had not taken the sheriff’s deed, but receiving thepossession from Isaacs under a sale authorised by him and had held merely under the sale, he would as quasi tenant have been entitled to notice whether the sale was enforcible against Isaacs or not. But as he not only rejected the offered conveyance from Isaacs, but took a deed from the sheriff and held under it, and endeavored to sustain it on the trial as a protection to hi.s possession, we think he was not entitled to notice - to quit.. And in fact it does not appear that he objected to the want of notice. The instruction to find for the defend,ant was therefore erroneous.
The deed from Isaacs to his childreen is not referred to in the bill of exceptions. If it was read as evidence, it precluded a recovery in the demise in .the name of the grantor, as however inoperative it may have been as against his creditors it was valid against him, and passed .his title. And as his title was not acquired by Gearheart, it remained in the grantees under the prior deed and is available to them in this action subject to such equities as Gearheart may have, as creditor or • purchaser.
In any view of the case, the Court should not have given the peremptory instruction, but should have instructed hypothetically, if at all, leaving the facts to-the jury. • .
Wherefore the judgment is reversed and the cause remanded for a new trial in conformity with this opinion..