| Ky. Ct. App. | Jun 6, 1868
delivered the opinion of the court:
It appears, that, on the 3d of May, 1862, appellee was sheriff of Bourbon county, and on that day three executions were in his hands, as sheriff as aforesaid, agáinst John P. Shropshire, &c. — one in favor of John 'R. Ferguson for four thousand two hundred and sixty-four dolr lars and sixty-two cents, with interest from the 13th of October, 1861, and one dollar and fifty cents costs; another in favor of same for seven thousand five hundred and .twenty-two dollars and fifty-four cents, with interest .from the day last named, and one dollar and fifty cents costs; and one in favor of Wm. W. Allen for about four thousand dollars — all of which were, by said Pullen, levied on a tract of land, the property of said appellant, Shropshire, in Bourbon county, containing four hundred and six acres; and, on the 2d day of June, 1862, he sold the whole tract of four hundred and six acres at forty-eight dollars per acre, which produced an excess of more than three hundred dollars over and above the sum required to satisfy said executions. The sale was for cash in hand.
In December, 1862, the president, directors, &c., of the Northern Bank of Kentucky, being judgment-fcreditors of appellant Shropshire, filed their petition in equity against him and Thos. and Joseph Mitchell, the purchasers at the
Pullen, as is alleged, having retained of the money received of the Mitchells, by virtue of the sale of the land made by him, about five hundred dollars for his commissions thereon, after that sale was set aside, Shropshire assigned to appellant, Cantrill, a creditor, •his right to reclaim the money retained by Pullen as his commissions, and this action was brought on the 22d of July, 1867, by Shropshire and Cantrill, to recover said amounts from Pullen. He resisted the relief sought on the ground — 1st. That he was by law entitled to the amount retained by him for his commissions; and 2d. That, even if he was not entitled thereto, the demand was barred by time, and relied upon the statute of limitations.
The law and facts having been submitted to the circuit judge, he dismissed appellant’s petition, and they have . appealed.*
■ Appellee, by law, was authorized to sell so much land, and only so much, as was requisite to satisfy the execu
Having transcended his authority, and done that which he had no power to do, it must result, as a necessary consequence, that the law would withhold from him, or not allow him to receive compensation by way of commission, or in any other way, for the exercise of an unauthorized power; and if he should attempt to apply any part of the money received by him through that means to his own use, the law would require him to restore it.
The only remaining question is, are appellants barred by the statute of limitations ?
The better opinion seems to be, that before an action-could have been maintained against appellee for the money retained by him for his commissions, the sale should have been quashed or set aside. Although it was void, still all parties interested might have made a conventional confirmation of it; and unless steps are taken for the purpose, and the sale quashed within a reasonable time, it would be presumed that those interested had acquiesced in it, and the same would not afterwards be disturbed; so that the statute would not commence to run until the sale was, by a proceeding for that purpose, set aside.