91 Ky. 240 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OP THE COURT.
At a sale of appellant’s land made September, 1885, under judgment of court, be became tbe purchaser, and with bis surety executed for tbe amount bid three bonds, payable, respectively, in six, twelve and eighteen months; but failing to pay the last one due of them, an attachment was issued against him and his surety, which was, however, upon their motion, respited by the
That statute, first enacted in 1878, affords to a defendant the same right to redeem his land, sold in pur - suance of an order or judgment of court for less than two-thirds of its appraised value, that he already had in case of sale under execution. But when a sale is made without being subject to the conditional right of redemption, there is no reason for previous appraisement.
The design of giving one year in which a defendant may redeem his land sold under order or judgment is to afford him an opportunity to relieve himself against sacrifice of his property by an enforced public sale ; but a purchase at such sale, whether made by the defendant himself or another, is the voluntary act of the bidder, and an undertaking that he makes it in good faith, and will, without any reservation, comply with its terms. Consequently a failure to promptly pay the sale bonds
If the purchaser at the first sale had been a stranger he would have had no pretense of right to redeem the land sold to satisfy the sale bonds he had failed to pay, for he would not have been a defendant in contemplation of the statute; and as appellant chose to place himself in the position of purchaser, both reason and justice require he should be treated in the same way; otherwise a defendant, by simply becoming bidder of his own land, though in bad faith, might practically exercise the right of redemption more than once during the process of collecting from him the same debt, and hold the land, the right of redemption attaching, not one, but, as in this case, three years from date of the first sale. We are satisfied it was not intended by the statute that the defendant, or any other purchaser, should have the right to redeem the same land
It appears that provision wag made in the judgment of 1885 that the proceeds of the land therein directed to be sold should be applied, first, to pay a mortgage debt of one Parr; second, to pay one thousand dollars to appellant, value of his homestead right, and, third, .the debt of appellee Maynell, guardian; but in the judgment appealed from the whole amount bid and paid into court by appellee Hilpp, was directed paid to appellee Maynell. As appellant has had copied and filed in this court only a partial transcript of the record, it must, according to a settled rule of this court, be presumed, in support of the judgment, that the omitted portion would show the one thousand dollars was paid to appellant out of the two sale bonds first due, or otherwise, for the proceeds of the last one of them only was paid to appellee Maynell.
J udgment affirmed.