|Court of Appeals of Kentucky.|
|MOORE v. BISHOP et al.|
|Feb. 28, 1899.|
Appeal from circuit court, Knox county. "Not to be officially reported." Action by E. Y. McKeehan's administrator against A. L. Bishop and K. D. Perkins to enforce a lien on land. Judgment setting aside order for writ of possession to W. L. Moore, the purchaser at commissioner's sale, and he appeals.
WHITE, J. On September 23, 1895, a house and lot of appellee Bishop was sold at commissioner's sale, and bought by Perkins, who transferred his bid to appellant, Moore. On September 22, 1896, appellee deposited with the clerk of the circuit court $305.45 for the purposes of redemption, appellant not being in the county. Appellant declined to accept this sum, and denied appellee's right to redeem. Deed to appellant, and writ of possession, had been awarded in July, 1896, and in December appellee moved to have the order granting writ of possession set aside, and to have the deed to appellant canceled, and to have the court to adjudge his redemption complete. An agreement is filed, signed by appellant, appellee, and a Mrs. Trosper, which recites the controversy as to the right of redemption, and providing for a sale to Mrs. Trosper by either appellant or appellee, as the court may adjudge the title to be. The question of redemption was heard by the court upon affidavits, evidence, and this agreement, and the court adjudged that appellee had a right of redemption, and had in good faith redeemed the property, and that by some mistake he had failed to deposit, by nine dollars, sufficient to repay to appellant the amount due him, and directed that to be paid by appellee, and canceled the deed, and set aside the order awarding a writ of possession. From that order and judgment this appeal is prosecuted.
Appellant has furnished us with only a partial transcript of the record. The evidence heard by the trial court is not before us by bill of exceptions or otherwise, and there is only one affidavit and the agreement copied into the record. In the absence of the evidence heard, we are not authorized to conclude that the judgment of the circuit court was in error. Indeed, the rule is the opposite. We must presume that, if the evidence were here, it would authorize the judgment rendered.