88 Ky. 448 | Ky. Ct. App. | 1889
delivered the opinion of the court.
The appeal is prosecuted in this case from the original judgment and from the order overruling the exceptions to the commissioner’s report and confirming it. The reversal of the original judgment can in nowise benefit the appellant unless the order of confirmation is also reversed, and it is, therefore, only necessary to consider that branch of the case. The assignment evidently contemplated that some of the proceeds of the estate assigned, or a part of the estate itself, would in all probability be restored by the assignee to the assignor, but, whether so or not, ■ the petition filed asked for a sale of the land or so much as might be necessary to pay the debts of the appellant. The appellant and his wife both answer and consent to a sale of so much of the land as would pay the debts. At the time the sale was ordered under the judgment the amount of indebtedness had not been ascertained, and the court below, proceeding t on the idea that all the land would have to be sold to pay debts, directed a sale of the entire tract, without directing a sale in parcels, or any division, as required by section
The question presented is; Can the debtor or the assignee for creditors disturb the purchaser when there is no such inadequacy in the price as would authorize the Chancellor to reject the bid? There is no such inadequacy in this case, and if the report of sale had been confirmed without objection, the rights of the purchaser could not be affected by a reversal of the judgment. It is plain that if the court had directed the commissioner to make the sale, first dividing the land into parcels, and the latter had failed to follow the judgment, that the sale, upon exceptions filed, would have been set aside; and when the attention of the court, where there has been such a sale in plain disregard of the statute for the protection of the debtor, is called to the action of the commissioner, although in obedience to the judgment, ought not the sale to be set aside and the error corrected by the court rendering the judgment? The terms and the
An attempt by the debtor to show in exceptions that
While it is apparent that these proceedings were conducted under the supervision of counsel on each side, we do not feel authorized to say that it works an estoppel on the debtor.
The judgment is therefore reversed and the cause remanded, with directions to set aside the sale and order a resale, requiring a division of the tract, so as it may be advertised and offered first in parcels and then as a whole, and for proceedings consistent with this opinion.
On the cross-appeal of the purchaser, it is insisted that the court below erred- in refusing to allow him an attorney’s fee as part of the costs on the trial of the exceptions below, and the case of Egard v. Chearnly, 1 Bush, 12, is relied on to support such an allowance. That case is a much stronger case for the purchaser than the one before us, but on an examination of the statutes we find no authority conferring such power on the Chancellor, and the practice has been for years on this bench to treat the purchaser as one of the parties litigant where he resists, as he has the right to do, the setting aside the sale. The motion is made by the owner of the land to set aside the sale upon sufficient grounds when shown to exist. The purchaser resists the motion, and the contest
As this was a case to settle an assignment for the benefit of creditors, and the assignee favored the confirmation of the sale, the costs in this court should be apportioned equally between the purchaser and the appellant.
The rule in Egard v. Chearnly is overruled.