Price v. Taylor

108 Ky. 558 | Ky. Ct. App. | 1900

Opinion of the court by

JUDGE PAYNTER

Affieminq.

The issue on this appeal is between the appellant, Frances Price, and the Nashville Trust Company. The appellant claims a lien upon the property under an order of attachment. The Nashville Trust Company claims one by a mortgage which was executed after the attachment was levied. The pleadings which were filed by the Nashville Trust Company are not here, so we are not advised by the record as to the averments in its answer and counterclaim. If the attachment created a lien upon the property upon which the mortgage was executed, of course it would be superior to that of the appellant. This must' be determined by the return which the sheriff made upon the order of attachment, which is as follows: “Executed the within attachment this 27th day of April, 1894, on Wm. H. Hartón, trustee of the estate of Col. James Taylor, deceased, by delivering him a copy thereof; and at the same time levied upon all the right, title and interest of Maggie P. Taylor in and to the estate of Col. James Taylor, deceased, conveyed in trust to Wm. H. Lape by said Col. James Taylor by deed of date July 5, 1882, and recorded in Deed Rook No. 31, page 87, etc., Campbell County Records, at Newport, 'Ky., excepting therefrom such estate as has since been conveyed by such trustee or his successors.” Section 217, Civil Code of Practice, is as follows: “The sheriff shaT return upon every order of attachment what he has done under it. The return must show the property attached, when it was attached, and the disposition made of it. If garnishees be summoned, their names and the time when each was summoned must be stated. And if real property be attached, the sheriff 'shall describe it with sufficient certainty to identify it, and, if he can do so, he shall refer to the deed or title under which the defendant holds it. He shall return, with the order, all bonds taken under it.” The deed of trust which Col. James Taylor made to W. H. Lape does not describe any real estate which he owned situated in the State of Kentucky, — not even stating the county in which if is situated. So the deed of trust and return can be construed together, and still there is absolutely no identification of the property upon which the sheriff says he levied the attachment. If he had made a return that he had levied an attachment upon the interest of Maggie P. Taylor on certain property, describing it, although the return did not show the interest she had in it, it would be valid. Humphrey’s Ex’r v. Wade, 84 Ky., 391, [1 S. W., 648.] Although the description of the land in the sheriff’s indorsement of the levy be general, it is valid, provided it is sufficient to identify the property. In White v. O’Bannon, 86 Ky., 93, [5 S. W., 346], the court held that a return as follows: “One hundred and forty acres of land near Eminence, Henry county, the property of defendants,” — was sufficient. In that case i)he quantity ofi land was described, its proximity to a city and the county in wffiich it was situated, named. The return in this case, as we have said, gives no description of the property, nor of its location. In fact it does not state it was situated in Campbell county. At the time the attachment was levied there was a suit pending in the Campbell Circuit Court to partition the land embraced in the deed of trust of Taylor to Lape. After it had been made under the orders in that case, an amended petition was filed in this case giving a description of the land assigned to Maggie P. Taylor. If the return of the sheriff had been sufficient to create a lien upon her interest in the estate, it would follow that part assigned to her in the partition proceedings. The trouble in this case, in our opinion, is, no such lien was created by reason of the failure of the sheriff to give any description of the property.

It is urged that the appellee could not make objections to the validity of the levy after the submission of the case. This might be true as to some defective proceedings in a suit wherein an attachment had been obtained.

The rule, however, could not apply to a case of this kind, because, if no lien was created upon the property by the return which the sheriff made, then the court could disregard it in any stage of the proceedings. The judgment is affirmed.