48 Ky. 261 | Ky. Ct. App. | 1848
delivered the opinion of the Court.
■ Four executions against D. R. Southard as executor of J. Southard, deceased, were placed in the hands of the Sheriff of Jefferson county, and were levied upon fifty acres of land, which the defendant in the executions designated for that purpose, by a written request
William Pope, the purchaser of the other interest in the fifty acres, died within a year after the sale, and having made a will and appointed his son, William H. Pope, his executor and trustee, the latter procured from the Sheriff of Jefferson, a deed conveying to him as executor and trustee, the undivided interest in said land purchased by his testator, and then exhibited his bill in this case, to obtain a division of the land, and a decree against Southard, who had still continued in possession, for the rents and profits accruing on that part of the land claimed by him, since the date of the purchase by his testator.
Southard assails the complainant’s right under the purchase at the Sheriff’s sale, upon various grounds, and also insists, that under the circumstances, he has in equity, a right to redeem, which right of redemption he
• The sum for which the land was sold, exceeded the actual amount due on the executions, a few dollars. The excess, however, was under five dollars, and it does not appear that a smaller quantity of land thán the fifty acres, would have paid the executions, had the true amountbeen ascertained and announced at the sale! On the contrary, as the plaintiffs in the executions bid just what was supposed to be the amount dhe, it is a fair presumption that they done so, to secure the payment of the whole debt, in the redemption of the land, and that they would not have bid beyond the amount due orí the executions, had that-amount been accurately ascertained. Under these circumstances, and as the small'excéss'for -which the sale was made, was evidently the result of mistake, it cannot have'the effect of rendering -the sale void, and therefore, the objection on this ground is álso unavailing: Adams vs Keiser, (7 Dana, 208; Morrison vs Bruce, (9 Dana, 211.) As these objections are deemed invalid, it is not necessary to determine whether, if valid, they could be rendered available in a Court of equity.
The right of Southard to redeem, is .-claimed upon two grounds : First, The extension of the time of re»
’Second, The, fact relied upon in the second ground, affects more seriously the title of the purchaser. Where
Unless then there is something to distinguish the purchase in this case, from an ordinary one, and take it out of the operation of the principle here asserted, Southard has, by the partial redemption made, acquired the right to go on and complete it.
This was a joint purchase by three individuals. The legal period of redemption under the statute terminated on the 4th of December, 1844. Before that period arrived, William H. Pope agreed to extend the time to the first day of the succeeding month. Within that lime Southard paid to J. F. Bullitt, the agent of Pope, and William C. Bullitt, two of the purchasers, the suns of three hundred and sixty four dollars fifty five cents, being the amount due upon the execution in favor of Burks’ administrators, including ten per cent, interest thereon. By an agreement among the purchasers, their respective interests in the land purchased, were t© be in proportion to the relative amount of their debts at the time of the sale.
The purchase thus made was essentially a joint one in its character and effect, and combined the sums due on all the executions, into one consolidated debt. The defendant in the execution had a right to redeem by the payment of the'whole purchase money to either of the purchasers. An agreement with either for an extension of the time to redeem, was obligatory on all. A partial1’ payment would not operate merely as a redemption tothc extent of the interest of one of the purchasers, it would apply to the whole purchase, and affeet it as a unit.
There is no room for discrimination between the purchase in this instance, by the plaintiffs in the executions^ and a joint purchase by strangers, who had appropriated difieren L amounts for the accomplishment of the general object. In the case supposed, although the interests of the purchaser in the subject of the purchase would not be equal, yet they would have a joint control-over it, and the act of one in reference to its redemption by the owner of the land, would bind all.
The law requires the officer to sell al once, and together, where there is a single tract, and not in separate parcels, land enough to satisfy the executions against the defendant A sale in this form is deemed most beneficial to the defendant, in producing a better price for his land than could be obtained by a sale of it in a different mode, and at the same time affording him facilities for its redemption from the purchaser. It is not then, in the power of the purchasers, to deprive him of the right which the law gives him, to regard the salé as a single transaction and treat it accordingly.
Southard, in making the partial payment to one of the purchasers, did not consent to waive its legal effect, lie insisted that it gave him the right to redeem after the expiration of the year, by the payment of the balance due upon the purchase. This is admitted by Pope in his answer to the cross bill. There is no feature in the transaction to authorize this to be placed upon a different footing from .other purchases. The defendant had a right to regard the parties as purchasers in solido, and treat them as such. There is nothing to exempt the case from the operation of the general rule, and consequently, Southard’s right to redeem by paying the residue of the purchase money, still exists, notwithstanding the legal period of redemption has expired.
The question' then arises, as to the terms upon which this right is to be exercised. Must Southard pay ten per cent, interest until the redemption is made, or that rate of interest for a year, and six per cent, afterwards, upon the aggregate amount then due ? The latter, we think, is the proper mode of ascertaining the extent of Southard’s liability, and that he should be required to pay the sum thus due, by a given day, and upon his failure, the fifty acres of land should he subjected to sale for its payment.-
Wherefore, the decree of the Chancellor denying Southard’s right to redeem, is reversed, and cause remanded for further proceedings in conformity with this opinion.