Court of Appeals of Kentucky.
SMITH v. MASON et al.
Feb. 24, 1894.
ACTION: Affirmed.

Appeal from circuit court, Bell county.
"Not to be officially reported."
Suit by W. A. Mason and others against A. B. Smith to quiet title and for injunction.
From a judgment for plaintiffs, defendant appeals.

In 1881 the appellant obtained a judgment in the Bell quarterly court against William Mason, Sr., father of the appellees, for about $28. Execution issued from said court for that sum against said Mason, which was returned "No property found." Thereafter a transcript of the judgment was filed in the Bell circuit court, and execution was obtained thereon from that court, which was placed in the hands of the sheriff of Bell county. He testifies that he levied the execution on about 100 acres of land as the property of said Mason, and, after duly advertising, he sold the land, and the appellant became the purchaser for the amount of the debt. It is admitted that this execution is lost, and that no memorandum appears in the clerk's office showing what was done under the execution and by virtue of it. In 1889, the execution being lost, and the appellant desiring a deed to the land, the circuit court ordered the lost execution to be supplied, and, upon that being done, the court ordered a deed to be made to the appellant for 100 acres of land. In 1892 the appellees, as heirs of said Mason, instituted an equitable action against the appellant to enjoin him from cutting and carrying away timbers from said land, and to quiet their title to the same. The appellant claimed that he was the owner of the land by virtue of said sale and deed, and was in the possession of the same, and asked that the title and possession be adjudged to him. The court, upon final hearing, adjudged that the land belonged to the appellees, and that they were in the possession of the same, canceled said deed, and sustained the injunction, but it allowed the appellant a lien on the land for the amount of said execution, and interest thereon. From that judgment the appellant appeals.

It is conceded that the land was not appraised. It is also conceded that the statute requires sales of land by execution to be appraised, and that, if the land does not bring, at the sale, as much as two-thirds of its appraised value, the owner shall have one year from the date of sale to redeem the land; also, that the appraisement shall be in writing, and returned with the execution. This statutory provision is for the protection and benefit of the owner of the land, in order that his land may not be sacrificed absolutely, but that in case it does not bring as much as two-thirds of its appraised value, which the law deems a sacrifice, he shall have one year in which to redeem by paying the sum for which the land sold to the proper person, and retaining his land; thus saving his property from sacrifice, and restoring the purchase money; thus making honors easy all around. It has been held by this court that a failure to comply with this provision "literally will not necessarily render the sale void," but it is not intimated what would be the effect if there was a total failure, as in this case, to appraise; nor is it necessary now to decide the question, for the reason that it is expressly held in that case that equity will allow the owner to redeem in such case after the expiration of the statutory period. Here, according to the weight of evidence, the appellees were all the time in the possession of the land, claiming it as their own. There was no written evidence that the land had been sold by execution, or that the same had been appraised, or that the owner was entitled to redeem. It seems to us that it is but equitable and just, in such cases, when the purchaser undertakes to disturb the possession of the execution defendant, and to deprive him of the land by the authority of his execution purchase, the execution defendant should then have the right to redeem; else he would be deprived of his statutory right by no fault of his, but by that of the sheriff, and the purchaser would be permitted to profit by this fault, when each party could be restored to his right by allowing the owner to redeem. It is not necessary, in view of what has been said, to notice the other questions made.

The judgment is affirmed.
Ky.App. 1894.
SMITH v. MASON et al.


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