Shepherd v. Delph
58 S.W. 991
22 Ky.L.Rptr. 977
Court of Appeals of Kentucky.
Nov. 14, 1900.
ACTION: Affirmed.

Appeal from circuit court, Fayette county.
"Not to be officially reported."
Action by J. E. Delph against John M. Shepherd to recover land.
Judgment for plaintiff, and defendant appeals.

This proceeding was instituted by the appellee, Delph, to recover possession of a small parcel of land in Fayette county which had been sold under an execution in favor of one Hughes against the appellant. The land appears to have been indivisible. The execution was for $176.28, with interest and cost. There were some small judgments obtained in the city court of Lexington against the appellant. Transcripts of the record were filed in the circuit court clerk's office, and executions issued thereon, which executions were levied upon the land in controversy, together with the Hughes execution, and at a sale under these executions the appellee became the purchaser of the property. The appellant failing to redeem the property within the time prescribed by law, this proceeding was instituted to recover possession of it.

It is urged with a great deal of earnestness that the proceedings in the city court of Lexington, in which the judgments, other than the Hughes judgment, were obtained, were invalid, and that the judgments were void; hence a sale under them could not give title to the appellee. From our view of this case, it is unnecessary to enter into a consideration as to whether the judgments in the city court were valid or not. It is conceded that the Hughes judgment was valid, and that the execution was duly levied upon the property, and sale made thereunder. Although the executions which issued on the judgments in the city court may not have conferred upon the sheriff authority to sell the land, still that could not invalidate the sale which was made under a valid execution, and the purchaser acquired title to the property by virtue of the sale under it. Freeman in his work on Executions had under consideration a question similar to the one here involved, and in section 325 says: "A sale may be made under several writs. Some of these writs may be valid, and the other void. If either of the writs under which a sale is made is valid, the officer has the power to sell, and consequently the power to convey. If in his deed he recites several writs, some of which are valid and some void, the recital of the void writs may be treated as surplusage, and the deed, being supported by the valid writ and the power to sell and convey thereby conferred, is as effective as if all the writs were unobjectionable."

It is claimed that one of the appraisers had a personal interest in the executions, which were based upon the judgments in the city court. There is no claim that he had any interest in the Hughes execution, and, if the law rendered invalid a sale made under an execution where one of the appraisers is interested in the execution, still that would not apply to this case, because the appraiser, as we have said, had no interest in the valid execution. Besides, the property did not sell for two-thirds of its appraised value, and the defendant in the execution had a year within which to redeem it from the date of sale, and could not possibly have been prejudiced by any supposed interest which one of the appraisers had in the other debts. If the appellant had tendered the purchaser under the Hughes execution the amount which he had paid by virtue of the sale under it and interest, and he had refused to accept it unless the amounts of the alleged void executions were also paid, then the question would have arisen whether or not the appellant was not entitled to redeem the land by the payment of the amount of the purchase under the Hughes execution. This, however, he failed to do.

It is claimed the sheriff sold the land for an amount in excess of what was actually due. If the dates in the record are accurate, the sheriff did not make any mistake in the calculation of the Hughes debt, and did not realize by the sale under his execution more than was actually due upon it; but if he made a mistake in the calculation, and sold the land for the excess which the appellant claims that he did, still, under the adjudications of this court, the sale would not be set aside. If the sheriff did sell the land under the Hughes execution for an amount in excess of the true amount, it is not claimed it was the result of fraud, either upon the part of the plaintiff in the execution or the sheriff.

The judgment is affirmed.

Ky.App. 1900.
58 S.W. 991, 22 Ky.L.Rptr. 977

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