175 Ky. 564 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming.
This was an action in the Todd circuit court, wherein certain creditors of the appellee, Ed Wade, Jr., whose
It was shown and not denied that on Thursday preceding the sale upon Monday, that Wade was trying to secure some one to purchase the land, who was able to execute the bond and who would give for it a price sufficient to practically discharge the liens upon it, and that in his efforts to do so, he secured one Yancey, who came and examined the lands and thereupon agreed with Wade, that he would attend the sale and. purchase the lands' at the sum of $10,000.00, and would then hold it for the benefit of himself and Wade. Yancey was financially able to make the bond and to pay the purchase price. Wade relied upon this agreement with Yancey, until the day of
After the sale had been set aside and the appeal had been prayed from the order by Morton, the judgment was not superseded, and thereafter the commissioner again advertised and sold the land, when one Hall, who was not interested in the litigation nor a party to the litigation in any way, became the purchaser of it at the sum of $9,-501.00. At the second sale, the lands were appraised at $11,950.00. The amount to be raised from a sale of the .lands was $9,898.28 and about $150.00 of costs. The second sale was duly reported and confirmed by the court; a deed made to the -purchaser and a writ of possession awarded in his favor. To the report of sale nor the confirmation of it, Morton did not in any way object.
It is insisted for the appellee, that the second sale of the lands and its confirmation and the execution of the deed to the purchaser without any objection from appellant, Morton, and Morton having failed to supersede the judgment by which the sale, at which he was the purchaser, was set aside, ha s - the effect of disposing of Morton’s rights as the purchaser of the lands at the first sale, and for that reason the appeal should be dismissed. With this view, however, we cannot concur, for while the title of the second purchaser of the lands, he not being a party to the suit nor an attorney in it, is not affected by the result of the appeal from,, the order setting aside the first sale, the rights of Morton as the purchaser at- the first sale are not concluded by a second sale' of the lands, if the first sale should' turn out to be the one which the court should have confirmed. Runyon v. Bennett, 4 Dana 598; Hayden v. Herbert, Hardin 150; Freeman v. Potter, 1 J. J. M. 193; Bank of Ky. v. VanMeter, 10 B. M. 66; Weber v. Tanner, 23 R. 1107; 1694; Civil Code, sec. 747.
However, for the purposes of this opinion, it will not be necessary to enter into any discussion as to what Morton’s rights would be if it should be held that the court below was in error in overruling the motion to confirm the first sale and in ordering it to be set aside, as the conclusion to which we have arrived in regard to the judgment appealed from makes it unnecessary to advert to any further questions in the case.
It is therefore ordered that the judgment appealed from be affirmed.