10 Ky.L.Rptr. 430, 87 Ky. 461
Court of Appeals of Kentucky.
BAKER et al.
October 9, 1888.

Where a judgment, under which land in the hands of defendant's grantees has been sold to plaintiff, an insolvent, is reversed, and plaintiff found to be indebted to defendant, the sale will be set aside.

In March, 1880, D. C. Baker recovered a personal judgment for about $6,000 against John W. Baker, and two tracts of land which the latter had in 1877 conveyed to Caroline F. Jackson and John E. Baker were made subject, and directed sold to satisfy it. From that judgment an appeal was taken, and in April, 1883, it was reversed by this court. At the February term, 1884, of the lower court the opinion and mandate of this court were filed, and it appears from the transcript an amended answer was then filed, and the action submitted; though another order filing the answer was made at the succeeding term, and evidently there was not then a submission. In the answer, the former judgment, opinion, and mandate are set forth, and the further statement made that during the pendency of the appeal to this court the two tracts of land mentioned had been sold under the judgment; the plaintiff, who as alleged, is insolvent, becoming the purchaser, and then having the land in his possession. The relief prayed for was a reference of the accounts between D. C. and John W. Baker for a settlement, and judgment in accordance with the opinion of this court, and also judgment setting aside the sales of the two tracts of land, and restoration of possession thereof to Jackson and John E. Baker. At the February term, 1885, personal judgment was rendered in favor of John W. Baker against D. C. Baker for about $2,000, being the amount reported by the master commissioner as due, and also setting aside the sales of the two tracts of land, and for the possession as prayed for.

It is contended as a ground for reversal that the judgment is void because no notice of the filing of the opinion and mandate was given to D. C. Baker, However, no question of notice could properly arise under any construction, for the plaintiff (D. C. Baker who is the appealet here) excepted to the order being entered at the August term, 1884, filing the amended answer, to the written motion to set aside the deeds made to him, which was then acted on and overruled, and to the motion to refer the case to the master commissioner; which not only shows he was present in court, but amounts to a waiver of notice if it had been required.

No exception was taken to the report of the master commissioner filed at the February term, 1885; nor is objection now made to the personal judgment based thereon in favor of the defendant John W. Baker; but a reversal is contended for only to the extent it set aside the sales of the two tracts of land, and restored the possession thereof to appellees Jackson and John E. Baker; and whether the court erred in that respect is the principal question in this case.

In this case Jackson and John E. Baker were purchasers of the two tracts of land for a consideration that was, between them and John W. Baker, valid and binding; and the right of D. C. Baker to subject them to sale was based upon the supposed indebtedness of the vendor to him, which it has been finally adjudged does not in fact exist. Judicial sales are upheld as a matter of policy, so far as the creditor and debtor are affected, it being supposed to be to the interest of both that bidding should be encouraged that the property may bring a fair price; and as to strangers they have a right to rely on the validity of a judgment which directs a sale of property. But the interest of neither the debtor nor creditor should be conserved by doing a positive wrong and injury to third parties who do not sustain the attitude of debtor to the plaintiff. The effect of reversing the judgment in this case would be to permanently deprive Jackson and John E. Baker of the two tracts of land without any fault of theirs, and invest the title in appellant, who has never, and, being insolvent, probably never will, recompense them. He instituted the actions to recover on a debt it has been adjudged was not in whole or in part due him. The two tracts of land are in his possession by purchase at a sale erroneously made to satisfy the unfounded claim; and to permit him to hold and enjoy them to the injury of the rightful owners, who are not in fault, is not required by sound policy, nor sanctioned by justice. Judgment affirmed.


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