White v. Roberts

112 Ky. 788 | Ky. Ct. App. | 1902

Opinion of ti-ie court by

JUDGE BURNAM. —

Affirming.

On the first day of March, 1898, an execution issued from the office of the Lee circuit court in favor of appellant and against appellee for $100, with six per cent, interest thereon from the eighth day of April, 1892,, and $7.85 which had been adjudged appellant for costs, directed to the sheriff of Madison county, which was levied by him upon a tract of seventy-three acres of land belonging to the appellee; and on the first day of May term of the Madison county court the land was sold by the sheriff at the ■court-house door, appellant becoming the purchaser thereof at the price of $144.40. On the 24th day of September, 1898, the appellee, Roberts, filed his petition in equity, seeking to set aside the sale upop two grounds: First, he alleges that he is an actual, bona fide housekeeper, with a family, resident in this Commonwealth, and that the entire tract of land sold did not exceed in value $1,000, and was for this reason exempt from sale; second, that more land was sold than was necessary to satisfy the execution under which the sale was made.

It appears from the pleadings and proof that the appellee, Roberts, lived on the tract of land in controversy for several years prior to 1897 with his family; that it was reasonably worth from $800 to $900; that it was divided into two separate tracts by a county toad, 15 acres lying on one side, and 58 on the other; than in 1897 appellee rented out the dwelling house on the place, and moved back to Beattyville, where he had previously resided, with his family; that his wife, who had some means of her own, started a small distillery, which he ran as distiller; and that in addition his wife ran a hotel, and he a barroom. Whilst he testifies that he always claimed the tract of land in Madison county as a homestead, and that he intended to return to it whenever his interests justified him in doing so, yet he says that he and his wife are realizing about $1,500 per annum from their present pursuits, and as this sum is largely in excess rf what, under the most favorable circumstances, he could raise on his farm, his intention to return is too vague and indefinite to justify the court in treating his removal therefrom as a temporary one. We therefore think the circuit judge properly held the property liable to execution.

The practice of selling real estate under execution was unknown at common law, and the rule is that a statute authority whereby title may be divested must be strictly followed in all the requisites which appear to be beneficial to the owner. Subsection 1 of section 1682 of the statutes prescribes that “only so much land can be sold as will satisfy the execution under which the sale is made.” Whilst the law secures to the creditor his just demand, and sequestrates the property of the debtor to satisfy it, it carefully guards his interest in all the various steps taken leading to the sale of his property; and “the sale under execution of several parcels of land at one bid, and putting up fqr sale a whole tract when some portion of it could be sold to satisfy the debt, is uniformly condemned by the courts, as tending to the sacrifice of property and to oppression of the debtor.” See Herman, Ex’n. p. 319, and authorities there cited. And one who seeks to sustain such a sale must show its justice and expediency. Ordinarily in the sale of land under execution each tract should be offered separately, and, if they fail to sell in this way, the officer will then be justified in selling all the property together, on a reasonable bid, if he make full return of the facts. The proof in this case shows -that the detached tract of 15 acres, if it had been sold separately, would have realized a sum sufficient to have extinguished the debt of appellant, leaving the main tract untouched.

We are therefore of the opinion that the circuit judge did not err in quashing the sale and directing a resale under venditioni exponas. The judgment is therefore affirmed both <on the original and cross appeals.