137 Ky. 406 | Ky. Ct. App. | 1910
Opinion or the Court by
— Affirming.
On the 26th day of February, 1892, T. B. Scott purchased from one Meyer Schamburg a certain tract of land in Pike county, Ky., and received a conveyance therefor. On June 4, 1892, Scott and wife sold and conveyed this land to T. P. ‘Wagner. Before these sales A. J. Auxier and James M. York, on the 18th day of June, 1890, instituted a suit against Meyer Schamburg and others for a debt due them. They procured orders of attachment against the property of the defendants in that action. The defendants owned two tracts of land. Auxier and York obtained judgment for their debt at the January, 1899, term of the Pike circuit court, sustaining their attachment and decreeing a sale of the two tracts of land to satisfy the judgment. The two tracts in question were sold on March 20, 1899, and purchased by J ames Hatcher. The sale was approved by the court, both tracts were conveyed to Hatcher, and he was awarded a writ of possession. Neither Scott, Wagner, nor the latter’s wife was- a party or privy to this action. Thereupon Wagner instituted suit against James Hatcher to cancel the deed to him in so far as it embraced the land purchased by Wagner, and to quiet his title to same. On the trial of that case it appeared that the attachment was levied by delivering a copy to J. II. Leslie and posting a copy on J.
The various grounds for .recovery set out in the petition are as follows: (1) Hatcher took possession of about six acres of land outside the boundary of land which he claimed to have purchased and for which he was awarded a writ of possession, and kept appellants out of the possession and use of it for three years. Its rental value was $100 per year. On this item appellants sought a recovery of $300. (2) Hatcher took possession of 12 acres of clover, also outside the boundary of land which he claimed to Lave purchased, tore down the fence, and let stock of the neighborhood run on the clover and destroy it. This resulted in a loss of $200. (3) Hatcher took possession of a certain field within the boundary claimed to have been purchased by him, and withheld the possession thereof from appellants for three
These claims for damages were paragraphed as above set out. Hatcher demurred to each paragraph of the petition, and it was sustained to the third, fourth, fifth, sixth, and seventh paragraphs, and overruled as to the first and second. Thereupon appellants amended their petition. Hatcher then de-' rnurred to each paragraph of the amended petition. It was overruled as to the first, second, third, and fifth
The facts developed from the record are as follows : After the purchase of the tract of land out of which this action grows, appellee Hatcher obtained a writ of possession for the land in the action of Auxier and York against Schamburg and others. That writ was issued in the following manner: .Hatcher, in Company with the sheriff and one or two others, went to the land. The sheriff laid the fence down in two places. Thereupon Hatcher rented the land to one Mont Hatfield, who occupied a tract of six acres outside of the land in -controversy. No other possession was taken of the land. Wagner testifies that he was not on the land the day the sheriff attempted to deliver possession thereof to Hatcher. When he returned, he found the fences down. The fences were permitted to remain in that condition for' a long time thereafer. He says there were 12 acres of clover and grass taken outside of the writ. The fence was torn down and remained down until the following spring. The clover and grass were destroyed by the neighborhood stock. He further testified that he did not remove the damaged timber from the land in controversy because Hatcher sent him word that he (Hatcher) would send the
The argument is made on behalf of appellants that they were compelled to obey the writ of possession issued in favor of Hatcher, and to respect the possession given to the latter. This position would be sound if the Wagners had been parties or privies to the action of Auxier and York against Schamburg and others, the' action in which' the writ of possession was issued. As stated before, however, they were neither parties nor privies; nor was the writ issued against them. That being the case, the sheriff had no legal authority to dispossess the Wagners. This is the doctrine announced in the case of McChord’s Heirs v. McClintock, 5 Litt. 304, where the court said: “The doctrine is well settled that a de
It is next insisted that the court erred in failing to allow appellants a recovery because of the expenses they incurred .in getting witnesses to the court and attorney’s fees in prosecuting their action against
Judgment affirmed.