76 Ky. 463 | Ky. Ct. App. | 1877
delivered the opinion or the court.
The sheriff of McCracken County, under and by virtue of various executions against the Linn Boyd Tobacco Warehouse Company, levied on the right of redemption held by said company in certain real estate situated in the city of Paducah. After due advertisement he offered said right for sale, and appellee Terrill bid therefor $11,050, and it was stricken off to him. He refused to execute to the,sheriff the necessary sale-bonds, and thereupon the property was readvertised, and on the succeeding county-court day was sold to the then highest bidder for the sum of $9,000. In the sheriff’s return upon the executions no mention whatever was made of the uncompleted sale to Terrill.
The warehouse company instituted this action in ordinary against Terr.il!, and, after setting out the above-recited facts,
This appeal involves the single question as to whether or not the petition and the proposed amendment set out facts constituting a cause of action?
Where a contract for land is executory on both sides, it is necessary that the sale and the price shall both be evidenced by a memorandum in writing signed by the vendor, and it has been intimated that the undertaking of the vendee should also be evidenced by a properly-executed writing. (3 Litt. 262; 3 J. J. Mar. 443; 6 B. Mon. 106; 1 J. J. Mar. 387.)
And when, as in this case, the vendee has received no benefits whatever under the purchase, and the vendor has not bound himself by the execution of the necessary memorandum in writing, his (the vendee’s) note for the agreed purchase-price will be treated as non-enforceable for the want of a legal consideration. (Curnutt v. Roberts, 11 B. Mon. 42.)
The sheriff, who, for the purpose of raising money by the sale of the judgment debtor’s lands, is the legal agent and representative of the plaintiff and defendant in the judgment and also of the accepted bidder in an execution sale, had the right to bind all the parties by his return on the execution. And we do not doubt that his return of the facts attending the purchase by Terrill would have taken the case within the 6th sub-section of the 1st section of our present statute of frauds, and have bound all the parties by an enforceable executory contract.
Appellant insists that execution sales, like judicial sales,
It was not necessary to require Terrill to plead and rely on
Whether a party who officiously intermeddles at a sheriff’s sale of real estate, and, without any intention of complying with the terms, bids more than any one else, and thus defeats a sale to a bona fide bidder then present, and renders necessary a second sale, at which the property sells for a smaller sum than would have been realized at the first, except for his interference, can be held to answer in damages for his wrongful conduct, independent of the return of the sheriff, we need not decide, as no such state of facts is charged against Terrill.
Judgment affirmed.