47 S.W.2d 513 | Ky. Ct. App. | 1932
Affirming.
On May 6, 1930, E.C. Webb and wife sold and conveyed to C.C. Cain and Walter Hines a house and lot located in the town of Science Hill, Pulaski county.
On November 16, 1928, L.F. Bremmer and E.C. Webb executed and delivered to Beecher Smith a note for $500. After maturity of the note Smith brought suit against the payors to recover thereon. At the October, 1930, term of the Pulaski circuit court, judgment was rendered in his favor. On November 12, 1930, execution was issued thereon and placed in the hands of the sheriff of Pulaski county for levy. The execution was levied on the property conveyed by E.C. Webb and wife to C.C. Cain and Walter Hines. The levy was returned on November 14, 1930, and on the same day Beecher Smith caused a lis pendens notice of said levy on said property to be filed for record in the county court clerk's office. On December 3, 1930, the property was sold under the execution, and Beecher Smith became the purchaser. On November 17, 1930, Walter G. Hines sold and conveyed his interest in the property to Minnie Cain, wife of C.C. Cain. *703
This action was brought by C.C. Cain and Minnie Cain against A.T. Sears, sheriff of Pulaski county, and Beecher Smith to enjoin the delivery of a deed to the property, and to set aside the levy and sale thereunder. The defendants pleaded the foregoing facts, and also alleged that at the time of the levy of the execution and filing of the lis pendens the record title to the property was in E.C. Webb, and that neither defendant had any notice or knowledge whatsoever that the property had been conveyed by Webb to C.C. Cain and Walter Hines. During the progress of the suit C.C. Cain died, and the action was revived in the name of his children and heirs, and was thereafter conducted by them through their mother, suing as next friend. It developed on the hearing that the property was occupied by a tenant at the time of the sale from E.C. Webb and wife to C.C. Cain and Walter Hines, and that since that time the tenant had been paying rent to the purchasers. On final hearing the chancellor granted the relief prayed for, and the sheriff and Smith appeal.
Section 496, Kentucky Statutes, is as follows:
"No deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deed or mortgage shall be acknowledged or proved according to law and lodged for record.
"The word 'creditors' as used herein shall include all creditors irrespective of whether or not they may have acquired a lien by legal or equitable proceedings or by voluntary conveyance."
The construction of the statute was before the court in Mason Moody v. Scruggs,
Judgment affirmed.