90 Ky. 171 | Ky. Ct. App. | 1890
delivered the opihioií oe the court.
In 1881 the appellee obtained a judgment in the Franklin Circuit Court for a sale of so much of the lot of ground described in the petition as was sufficient to pay a material-man’s lien for the sum of forty dollars, said materials having been furnished the appellant, Pittman, by the appellee, for the purpose of repairing the house on said lot, and a lien having been retained on said lot for the payment of said sum. In the judgment it ivas provided that the sale was not to be enforced unless it was so directed by the appellee, and the case was to remain on the docket for all further orders. The case did remain on the docket, without sale, until 1885, in which year it was ordered that it be filed away, “subject to being redocketed.”
In 1889, upon notice to the appellant, Pittman, but without the case having been redocketed, the lot was ■sold . under the said judgment of 1881, and the appellant, Herndon, became the purchaser. Between the times of filing said case away and the sale of the land under said judgment, the People’s Homestead and Savings Association received a mortgage on said lot from the appellant, Pittman, to secure a loan of two hundred dollars. The appellant, Pittman, filed exceptions to the report of sale upon the ground that the appellee had lost his lien by delay, and the appel
The title of the appellant, Pittman, to said lot is nowhere put in issue. His title is conceded. The validity of the appellee’s lien is admitted, as is the judgment foreclosing that lien. The validity of the lien of the People’s Homestead and Savings Association is also admitted. The only question to be decided is, has the appellee’s lien been dissolved or been postponed to that of the Association by reason of the laches or conduct of the appellee, occurring after he had obtained his judgment of foreclosure. This inquiry does not involve the title to real estate, as far as the appellants, Pittman and the Association, are concerned, in the sense of depriving the Superior Court of jurisdiction to try the issue. The question may be illustrated by the case of the levy of two executions, each in favor of different persons, and against the same person upon the latter’s tract of land, and the question arises as to the priority or waiver of lien resulting from the laches of the one or the other, would it be contended that the Superior Court had not jurisdiction to try this issue as to
But the question involved as to the appellant, Herndon, is one of title. The property, at the decretal sale, was struck off to' him as the best bidder, and the appellee seeks to hold him to his purchase. He contends that no title was sold, or, if it was sold, it was subject, by reason of the laches of the appellee, to the mortgage lien of the People’s Homestead and Savings Association, and he, by reason thereof, could not get a clear title under his purchase. By reason of this issue of title this court has jurisdiction of the •case.
As said, the appellee’s lien and judgment foreclosing the same were proper. That judgment remained on the docket until some time in the year 1885 unexecuted. The judgment was notice to all parties, that might be concerned, of its contents, which were that the appellee had acquired a material-man’s lien on said property, and that the land was adjudged to be sold to satisfy the same; but it was not to be sold unless ordered by the appellee, and the case was to remain on the docket, subject to all future orders. So the case remaining on the docket -was perfectly consistent with the idea that the judgment remained unsatisfied, and appellee looked to his right to have the land sold under it to satisfy his judgment debt.
Tfie appellant, Pittman, was duly notified that tfie land would be sold by tfie commissioner, and it does not appear that fiis interest suffered by reason of the failure to place tfie case on tfie docket. For these reasons fie .should not be heard to complain. The other appellants certainly fiave no ground of complaint.
Tfie judgment is affirmed.