146 Ky. 434 | Ky. Ct. App. | 1912
Opinion of the Court by
Commissioner
Reversing.
In the year 1883 a fine was adjudged in the Pike Circuit Court against one Vandaly Francis. On September 12th, of that year, Vandaly Francis and Gf. W. Hackney were married. On March 26th, 1884, a capias issued from the office of the clerk of the Pike Circuit Court
Plaintiffs, Ballard Weddington, James Hatcher, Mrs. Kentucky Powers and George Pinson, Jr., hold whatever title Ferrell acquired by regular conveyances from him. A year or two before the institution of this action G. W. Hackney died, and the defendants, Rans Spears and J. S. Cline, acquired their title by deed from G. W. Hackney’s heirs.
On August 11th, 1909, the plaintiffs brought this action in ejectment to recover the land in controversy and damages for its detention. The defendants denied plaintiffs’ title and asserted title in themselves. Subsequently, by amended petition, plaintiffs set out the proceedings above referred to, and charged that G. W. Hackney was present at the sheriff’s sale and encouraged and requested the purchaser, R.‘ M. Ferrell, to buy the land and pay his wife’s fine. It was also charged that defendant, Cline, was the sheriff who made the deed, and that by his action he was estopped from claiming title to the land in controversy as against the vendees of the purchaser at the sheriff’s sale. The allegations of the •amended petition were controverted of record. Upon motion the case was then transferred to equity, and the chancellor gave judgment in favor of plaintiffs. From that judgment this appeal is prosecuted. .
As neither plaintiffs nor defendants have had possession of the land in controversy, the question of adverse possession is eliminated from the case.
The question is: Was the sale of Gr. W. Hackney’s land, under capais against his wife, valid? It must be admitted that the sheriff was not authorized by the capias to sell the land to a stranger. Ordinarily' the execution purchaser acquires only the title of the execution debtor. If Hackney, as a matter of fact,- was present in .person when the sale was made, and encouraged and requested the purchaser to buy the land, he and those claiming through him would be es-topped from asserting title. As before stated though, the allegations of the amended petition to this effect are controverted of record. Though those .allegations are again repeated in the amended reply, it was not necessary to deny them again. Upon this question there is an entire failure of proof. It follows, therefore, that the plea of estoppel is not available.
As the land in controversy did not belong to the execution defendant, but to Hackney, and as the proof fails to show that Hackney did anything on the occasion in question to estop him, or those claiming through him, .from claiming title, it follows that there was only one way by which he could have divested himself of title, and that was by authorizing the sheriff, in writing, to sell the land for the payment of his wife’s fine. Had he done this his title would have passed by the sale. While the return of the sheriff states that the land was given up by Hackney, it fails to state that it was given up in writing, and there is neither proof nor allegation that it. was given up in writing.
Nor is the case made any stronger by evidence of oral admissions on the part of Hackney that he had given the land up. As he could, not divest himself of the title by orally surrendering the land in the first instance, his subsequent oral admission that he had surrendered the land did not impart any validity to the void surrender.
Nor is there any merit in the plea on the part of •plaintiffs that they are bona fide purchasers for value without notice. Having acquired title through an execution ' purchaser, subsequent vendees are put on notice of what the proceedings of record reveal. Had plaintiffs examined this record, or the record of the deed to the purchaser, which the, law requires them to do, they would have ascertained that the land in question was the property of Gf. W. Hackney, and not of the execution defendant, and that the proceedings failed to show that Hackney had authorized the sheriff, in writing, to make the sale. (Greer, &c. v. Wintersmith, &c., 85 Ky., 516; Smith, &c. v. Pope’s Heirs, 5 B. Mon., 337.)
As the sheriff’s sale of the land in question was void, and therefore subject to collateral attack in an action of ejectment (Addison v. Crow, et al., 5 Dana, 271), and as the evidence fails to show any action on the part of Hackney, or of those claiming through him, that estop-ped them from asserting title to the land, it follows that judgment .should have gone in favor of defendants.
Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.