110 Ky. 589 | Ky. Ct. App. | 1901
Opinion op tiie coubt by
Reversing.
Appellant, Frances Price, filed her petition in equity against Maggie P. Taylor, Marcus A. Spurr, and W. H. Hartón, as trustee of the estate of James Taylor deceased. She set up a note originally given for $3,000 by Maggie P. Taylor and Marcus A. Spurr, on which $2,000 had been paid, and alleged that both of them were non-residents of the State; that the defendant, W. H. Hartón, as trustee of the estate of James Taylor, deceased, had certain personal and real estate of the defendant, Maggie P. Taylor, in his hands, sufficient to pay the claim. She prayed that he be required to answer and set out what property he had belonging to Maggie P. Taylor, and for an attachment and judgment for the debt. Maggie P. Taylor and Marcus A. Spurr were proceeded against as non-residents. An attachment was issued, which was returned as follows r “Executed the within attachment this 27th day of April, 1894, on William 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 Mag gie 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, Kentucky, excepting therefrom such estate as has since been conveyed by such trustee or his successor.” A summons was also issued on the petition and executed on Hartón, as trustee, on the same day.
It is unnecessary to notice the first two objections in detail. We think it clear they are insufficient. The third objection presents a question of more difficulty. By section 217 of the Civil Code of Practice, it is provided: “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.” The statute is only a brief statement of the rule usually followed by the courts. The levy must
Under these authorities, the levy in this case must be sustained. It conforms to the statute, and refers to the deed or title under which the propery was held, and was plainly a levy on all the right, title, and interest of Maggie P. Taylor in the real estate in Campbell county held under the deed. The precise property that was held under the deed might be shown by parol, and thus identified with entire certainty. When the return is read in connection with the pleadings in the case, there is no uncertainty whatever as to what was levied on; and before judgment, as was actually done in this case, the particular description of the property might be incorporated in the record, so that the judgment and order of sale would describe it