114 Ky. 534 | Ky. Ct. App. | 1903
Opinion of the cottbt by
— Reversing.
Appellees, W. B. Flanders and others, judgment creditors of the appellant Johnson Wilson, caused executions to be levied on 11 acres of land in Bath county of which he was
While much is alleged in the answer and amendment by way of conclusion, they do not present the material facts. First, that a Iona fide incumbrance, in the mortgage to McCue of $3,500 exists on the land, which is of a date antecedent to the levy and sale under appellees’ executions;
The mortgage to James McCue was executed December 30, 1893, by appellants Johnson Wilson and Thomas Johnson, and embraced, in addition to the 11 acres in controversy, several. parcels of land in Bath and Montgomery counties owned by them jointly, the consideration being a note of $3,500 given for money loaned the mortgagors by the mortgagee, which note, by the terms of the mortgage, can not be “collected by law for twenty years.” The genuineness of this mortgage appears to have been established by judgment of the Montgomery circuit court, where it was attacked upon the ground of fraud in an action instituted by appellees and others, judgment creditors of appellant, and the judgment of the circuit court was thereafter, affirmed by this court. See Johnson v. Johnson, 22 R., 43, 56 S. W., 644.
As already stated, appellees’ notice and motion for the writ of possession were based upon section 1689 of the Kentucky Statutes, which provides that “the purchaser of lands sold under execution and not redeemed as provided for in this article [that is, within a year from the date of sale], shall have the right after obtaining a conveyance therefor [sheriff’s deed] upon ten days’ notice in writing to the defendant in the execution whose lands have been so sold, to enter a motion on the docket of the circuit court of the county where the lands are situated for a judgment for
Judgment reversed, and cause remanded, with direction to the lower court to permit the answer and amended answer of Johnson Wilson to be filed, and to set aside the order awarding to appellees possession of the land, and for such further proceedings as may not be inconsistent with this opinion.