45 Ky. 488 | Ky. Ct. App. | 1846
delivered, the opinion of tlie'Court.
This action of -ejectment was brought on the-demise of Patteson, under a sheriff’s deed, made to him as purchaer of the land in contest, against Owens who had received a' deed from the defendant in the execution, between the date of the levy and the sale by the Sheriff. And the only question, which vye deem.it necessary to decide, is, whether upon the facts appearing in connection with the levy -and sale, and'deed, the conveyance to Owens, is overreached, by the subsequent sale aud deed of the Sheriff to Patteson.
The fieri facias which was in favor of Patteson, and -against Hawks, was ‘levied on the land, on the 15th of January, 1841, and was returnable in the latter part of same month. It was not in fact returned, until the 7th of November, 1843,nearly three years after the levy, _ , , 7.,. . J , , . / On the same day a venditioni exponas issued, and on the 17th of November, 1843, two years and ten months after t.he levy, the land was sold, and Patteson, having become the purchaser, at the price of $231 25, a deed was made to him, by the Sheriff, on the 29th of December,
In this interval, on the 20th of June 1842, seventeen months after the levy, Hawks conveyed the land to Owens, who so far as appears had no knowledge of the levy, for the consideration of $400, acknowledged in the deed to have been paid in hand. According to the principles settled in the case of Addison, &c., vs Crow, &c., (5 Dana, 273 to 277,) even if there was at the date of this deed a subsisting lien under the levy, the title passed by the the deed to Owens, subject to be overreached only by a subsequent valid . sale and conveyance by the 'Sheriff. The question then is, whether upon the facts stated, we can pronounce as matter of law, and against the bona fide purchase of O-wens, that there was at the time of that purchase a subsisting lien under the levy, and that it continued seventeen months longer, so-as to uphold the subsequent sale and conveyance under the venditioni exponas, and give them relation back to the date of the levy or the delivery of the fi. fa.
On recurring to the statutes we find nothing in them which sanctions the idea that they intend to give to the execution creditor, by means of a secret levy, a hidden lien which when brought to light at any future period, however distant, shall give to a subsequent sale made professedly-under that levy, the effect of overreaching the title of an intermediate bona fide purchaser. Without detailing the statutory provisions, it is sufficient to state, 1st. That the statutes provide for the prompt return of all proceedings under executions, and therefore for the publicity of every act which can either give or continue the lien upon the debtors property ; 2d. That they provide for and contemplate a complete execution, within a convenient period, of the mandate of the writ of fieri facias, by the seisure-and sale of the debtors estate if necessary for the satisfaction of the debt; and 3d. That they place it in the power of the creditor to coerce a performance of the Sheriff’s duty in returning the writ, and completing the execution of its mandate. The result of all is, that the statutes intend to give no secret lien ; that they intend to secure by means of the execution and the proceedings which it authorises the just fruits of a reasonable diligence; that they intend to provide for a creditor who in good faith resorts to the legal remedy for the coercion of his
If the-proceedings under an execution are regular by an open levy, a prompt return of the fact, and a^ale within-reasonable and convenient time, or upon failure o-f any of these duties on the part of the Sheriff, by steps taken within reasonable time to coerce their performance, there can be rto bona- fide purchase in the interval, as against the execution.- For under such circumstances, the 1-aw would justly impute a knowledge of the facts-to every one who should dea j with the property. And there would be neither injustice nor injury, in declaring any intermediate purchase ineffectual to defeat the execution. Indeed a contrary decision would defeat the objects of the statute. But the present case is entirely different. So far from the proceeding being such as to give the intended publicity to- the lien, whereby every intermedler would have been affected with notice-, or sueh as to enforce the intended promptness of action under the execution, whereby the continuity of the lien would be kept up so as-to furni-sh reasonable ground for connecting the sale with the levy, the creditor has, in effect, concealed his levy and 1-ien for nearly three years and after having thus withheld the appointed means of knowledge, and authorized the presumption that the execution which had thus lain dormant, was satisfied, or that the lien which it gave had never been perfected by a levy, or had been waived or abandoned, he- claims against an intermediate purchaser, actually ignorant of the levy, and who by hie own laches or collusion with the debtor, has been encouraged to deal for the property, the benefit of the principie which is- applied to regular and open proceedings-. As against the debtor himself, for whose benefit and with whose assent any delay occurring under the execution, might be presumed to have been allowed, the lien and power to sell might pe.r-haps-be regarded as subsisting for any length of time, until the debt should be discharged. But as against an intermediate purchaser, coming in under such circumstances as characterize this case, it-seems to us that it is not requisite for the effectuation of the pui
Wherefore, the judgment is reversed and the cause remanded, for anew trial, in conformity with the principles of this opinion.