60 Ky. 349 | Ky. Ct. App. | 1860
delivered the opinion op the court:
The only question presented by this record is, does the sale majle by the sheriff fall within the provision, and are the rights of the parties to be controlled by article 15, chapter 36, Revised Statutes, (1 vol., 488.) We think the present case is not embraced by the statute, supra, and cannot concur with the learned chancellor.
He had not the legal title, but he was in possession of said lots; he had purchased them, had paid $400 of the purchase money, and had an equitable interest in them — an interest, however, which was sot subject to sale by virtue of said execution, but such an interest as appellee at any time might have sold publicly or privately himself, and certainly could have constituted the-sheriff his attorney in fact to sell his interest in the estate for him; and no reason can be perceived why the written authority which he gave the sheriff to sell by virtue of the execution should not be as binding upon him as if he had constituted him his attorney to make the sale before he had any execution.
The interest of appellee was not subject to levy and sale, but he had a right to waive the protection which the law threw around his equitable title for hi3 benefit, if he chose to do so ; and, having done so, he should be estopped to deny the purchaser’s right acquired under a sale to which he had given the highest sanction.
In Major vs. Deer, (4 J. J. Mar., 589,) this court held, that “when.land is sold at the instance or with the assent, express or presumed, of the defendant, as he is benefited by' it, he should be bound by it as his own voluntary act; and, therefore, should not be permitted to deny that the purchaser acquired ' any title.” And in the case of Reid vs. Heasley, (2 B. Monroe, 256,) it was expressly decided that, although, when possession is the only fact relied upon by the purchaser, as evidence of such title in the debtor as was subject to levy and sale, the latter may show that he.had not such title but a mere equity, he will be deprived of the benefit of this fact, and estopped to deny the title of the purchaser, if it be shown that the levy and sale were made with his assent.
It may be the property has increased in value, and it may seem to operate prejudicially to appellee, but it is the consequence of his own voluntary act, and justice and fair dealing will not permit him to defeat the rights of appellant acquired under his authority.
The judgment of the court below is therefore reversed, and the cause remanded with directions that a judgment be rendered directing appellee to surrender the possession of the premises to appellant; and, as appellee’s vendor, Danthal, is before the court, he will be directed to convey the property to appellant upon his receiving his purchase money, or such assurances as will be satisfactory to him; and appellant will be entitled to reasonable rents from the date of his purchase, subject to be diminished by such lasting and necessary repairs as may have been put upon the premises; and for the ascertainment of these facts it will be necessary to refer the case to the master; and such further proceedings will be had in the court below as will be necessary to settle the rights of the parties in conformity with this opinion.
