61 Ky. 103 | Ky. Ct. App. | 1862
deliveked the opinion oe the oohkt:-
The Legislature, in 1835, passed an act (sess. acts, 1834-5, page 185,) authorizing a sale of the lands of James Monks, deceased, for the payment of his debts, upon a proceeding in chancery to be instituted for that purpose by his administrator. In that proceeding commissioners, appointed in pursuance of the act, reported that the decedent’s estate consisted of 333 acres of land, beside the land allotted to his widow, and the court decreed a sale of so much of said 333 acres as might be necessary to raise $1,200. A commissioner, appointed for the purpose, sold 144 acres for $656, and, at a subsequent day, offered for sale the residue, (which was supposed and represented by him to contain 189 acres,) or so much thereof as might be necessary to raise the balance of $544; and J. R. Hamilton, for that sum, purchased 174 acres thereof, to be laid off in a certain mode designated by the commissioner. The land thus designated was surveyed under an order of court, and was conveyed by the commissioner to A. Hamilton, assignee of J. R. Hamilton, by metes and bounds, according to the survey- or’s report. Afterward A. Hamilton’s heirs conveyed said tract, described as containing 174 acres, and an adjoining tract, described as containing 150 acres, making together 324 acres, to J. R. Hamilton, who conveyed the same to J. S. Lander, one of the tracts being described in the deed as containing 174 acres, and the other as “containing at least 150 acres, supposed to be more.” In 1855 Lander’s heirs conveyed said two tracts to the appellant, Jennings, describing them as con
The court below, upon a demurrer by A. Hamilton’s heirs dismissed the petition as to them, and, having caused 174 acres of the land to be surveyed in the mode designated by the commissioner when he sold to J. R. Hamilton, gave a judgment against Jennings in favor of J. M. Monks’ executor for the surplus of 40 acres, from which Jennings appealed.
1. It is contended that, even if Jennings is not entitled to the land, the judgment is erroneous, because it is in favor of the executor instead of the devisee. But, as J. M. Monks not only authorized his executor to sell the land, but devised to him the land itself, giving to the devisee only the proceeds when sold, our opinion is that the judgment if otherwise right was properly rendered in favor of the executor.
2. It is contended that Jennings is entitled to hold the land because he purchased without notice of the mistake. On the other side it is contended, first, That he had notice of the mistake: secondly, That the commissioner’s deed to Hamilton was void, at least as to the surplus, and, consequently, that Jennings acquired no title thereto.
Whether or not the petition sufficiently alleges notice of the
As Jennings derived no benefit from the mistake, and, without notice of it, purchased and paid for all the land including the surplus, it is clear that the plaintiff was not entitled to any relief against him, if the commissioner’s deed to Hamilton passed the legal title to the surplus land. (Powell vs. Eve, 2 Bibb, 317 ; Floyd’s heirs vs. Adams, 1 A. K. Mar., 72.) And it is equally clear, that a conveyance by the owner of land passes the legal title to all the land within the designated boundaries, though they may contain double the quantity mentioned in the deed.
But it is contended that this case stands upon a different footing, because the sale and conveyance were made not by the owner, but by a commissioner in a proceeding against him for payment of debts. We have seen no decision upon this question except the one appealed from. It has been decided by this court, in a number of cases, that a sale by an officer of more land than is necessary to pay the debt, for which the sale is authorized to be made, is void. But in all of those cases that we have seen, the quantity of land sold was known by the officer, and purchaser; the error consisted in raising more money than the execution, judgment, or decree authorized, and it was an error shown by the record and capable of being corrected by it. In the case of Walker and Wife vs. McKnight,
There is perhaps no substantial difference in principle between this case and that of Floyd’s heirs vs. Adams, above cited. In that case Floyd, having agreed to convey to Trigg 1,000 acres of land on Elkhorn, the place where McClellan’s fort stands, died, leaving a will whereby he directed his executors to convey to Trigg’s heirs “one thousand acres of land in Fay-ette, known as the Royal Spring tract.” In a suit brought by Cobb, assignee of Trigg, against Trigg’s heirs and Floyd’s executors, the court ordered Floyd’s executors to convey said land to Cobb, and a conveyance was accordingly made by them. It was afterward discovered that the tract contained over 2,000 acres, and Floyd’s heirs sued Cobb’s vendees for the surplus ; but the court, instead of holding that the conveyance made by its order was void, and thus remitting the defendants back to the bond from Floyd to Trigg, which would have given them a right to only 1,000 acres, held that the conveyance invested Cobb with the legal title to all the land in the tract.
In our opinion the commissioner’s deed to Hamilton passed the legal title to the 214 acres, and the plaintiffs are entitled
As Monks’ executor has not appealed from the judgment dismissing the petition as to A. Hamilton’s heirs, as there was no decree as to J. It. Hamilton, and as Lander’s heirs aré hot parties to the suit, there is no question before us as to the executor’s right to recover compensation from any; of those parties.
The judgment is reversed, and the cause remanded, with directions to dismiss the suit against the appellant.