172 Ky. 607 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming upon the original and reversing upon cross-appeal.
This is the second appeal of this case, and the opinion on the former appeal will he found in 162 Ky. 140, in which is given a statement of the facts with reference to the forfeiture judgment and sale of appellees’ land that this action seeks to avoid. Upon a return of the case, the following additional facts were developed.
About 1906 George W. Bramblett, a large stockholder in the company, purchased from the company’s creditors the judgments rendered against it in the suits in the Jefferson circuit court, and these suits were consolidated and proceeded under the style of George W. Bramblett, et al, against the Cumberland Land & Lumber Company, et al., until his death, when same were revived in the name of his administrator. The company had title to about 240,000 acres'of land in several counties of the mountains of Kentucky, and the judgments against it purchased by Bramblett amounted to about $75,000.00. The effort to sustain the company’s title to these lands and to enforce a sale of same in satisfaction of its debts has resulted in much and protracted litigation, at least three appeals having been prosecuted to this, court, and it appears that the land involved heré is the last piece owned by the company and that this action will finally settle its affairs.
‘ ‘ Thereafter, by a judgment entered on Dec.' 31, 1913, said attachments and levies thereunder were sustained, and the sheriff of Jefferson county, Kentucky, was ordered to sell the said property at public auction to the highest bidder, which he did, and thereafter, on the 31st day of March, 1914, said sheriff filed his report, showing he had sold the property hereinbefore described to W. L. Bramblett, administrator of the estate of Geo. W. Bramblett, deceased, who purchased said property at less than the amount of his debt, which report of 'Sale was confirmed by the court on the 9th day of April, 1914, after which, by order entered April 9, 1914, the court ordered the Commissioner to execute a deed to said purchaser for said property, free of lien.
“All of which more at large appears by reference to-the aforesaid cause; which reference is now here made for greater certainty.”,
Counsel for appellant contend that this recital shows that the sale to Bramblett was illegal and that the deed is void because the sale was made by the sheriff of Jefferson county rather than the sheriff of Harlan county where the land is situated, and that it does not appear
A sufficient answer to the last objection is, that it does not appear from the deed that the sale was not made at the courthouse door in Harlan county or other place ordered by the court, as under Section 696 of the Civil Code might have been done; and as the deed is regularly executed and approved by the court it cannot be attacked collaterally in this proceeding unless it shows on its face it is void. Crown Real Estate Co. v. Rogers’ Com., 132 Ky. 790; Barnett v. Bauer Cooperage Co., 145 Ky. 163. Neither is the deed void because the sale was made by the sheriff of Jefferson county. Section 229 of the Code provides that attached property shall be sold “by the sheriff” upon order of the court having control of the property, but it does not provide the sale shall be made by the sheriff who levied the attachment or of the county where land to be sold is located, and we are unwilling to so construe the section, which counsel for appellant insists should be done. As the sale must be made by order of the court having control of the attached property, the sheriff that makes the sale pursuant to such an order is in fact the court’s commissioner in so doing, and cannot sell at all without the order. We can- see no reason why the court in ordering the sale cannot with propriety direct the sheriff of the county where the court is held to make the sale of land in another county upon which an attachment was levied by the sheriff of the other county. It is not prohibited by the Code or any rule of law and it conforms with the practice of sending the court’s commissioner to other counties to make sales.
We therefore conclude the chancellor’s judgment declaring the forfeiture proceedings and the sale of the land to appellant void, and cancelling the deed to him was correct; and that the appellees, Commonwealth Land & Lumber Company and Gr. W. Bramblett’s administrator, were authorized to maintain this action.
For the reasons given the judgment is affirmed upon the original appeal and reversed upon the cross-appeal, with direction to limit the lien awarded to appellant upon the land sold to the amount of the lien for taxes dia-v charged out of the purchase money.