8 Ky.L.Rptr. 696
Court of Appeals of Kentucky.
STEWART v. HOSKINS and others.
February 12, 1887.
ACTION: Reversed


Appeal from circuit court, Knox county.
This action was instituted by appellant, William Stewart, to subject land of Levi Hoskins to the payment of a judgment against said Hoskins in favor of appellant.

PRYOR, C. J.
Levi Hoskins died, leaving a last will, and surviving him his widow and three children. By his will his estate or land was divided equally between his children; and two of them, Levi and John, purchased the interest of their sister, making them the owners of the entire land, subject to the dower interest of their mother. John also claims to have purchased the interest of his brother, Levi, and to be the sole owner of the land in controversy. The facts conducing to show the purchase present this state of case: The father of John and Levi, after making his will, seems to have surrendered his control over his property, and permitted his children to use and dispose of it as if they held the land by purchase from him He permitted or consented to the sale by the daughter; and Levi, being anxious to obtain the loan of $1,000, borrowed the money of John Hoskins, his brother, and executed to him a writing by which he secured him in the loan by giving him a lien on his interest in this land, John agreeing also to support his father and mother. That writing was executed in the year 1868, and was consented to by the father, but was never recorded. The appellant in the present action, William Stewart, holding a claim against Levi Hoskins, reduced it to judgment; had an execution issued, and returned no property found, and one subsequently issued that was levied on the land; filed his suit in equity to have the one-half interest of Levi Hoskins sold to satisfy his judgment. To that action, John, Levi, and all the parties in interest were made defendants. It is alleged by Stewart that John Hoskins had advanced to Levi in some way $1,000, and had taken a lien on the land to secure it, but how he does not know, and John is called on to answer, and state the nature of his claim.

In 1876, after this suit had been filed, Levi executed to John a bond purporting to be an absolute sale of the land by Levi to him, and executed, as they say, in pursuance of the real purpose and meaning of the writing executed in the year 1868. The first writing is only a mortgage, and the last evidences an absolute sale. The proof conduces to show a purpose to sell in 1868, when the writing of that date was executed; but this view of the transaction is so much at variance with the writing itself that it must be held to be, what its terms plainly import, a mortgage, and the sale in 1876, made after the equity of the appellant had attached, cannot affect the rights of the appellant.

The writing of 1868 is as follows:
"In consideration of one thousand dollars paid in hand, and the maintenance of father and mother, I let John Hoskins till my land, and charge him no rent, and I am not to pay any interest on said money. The said John Hoskins has a lien on my land for the one thousand dollars until paid.
[Signed] "LEVI HOSKINS.
"September 2, 1868."

When this contract was made or loan effected, the father, who was invested with the fee, was living, but he consented to the arrangement. John was in possession under the purchase or mortgage, supporting his father and mother, and continued in the possession until this action was instituted and judgment rendered, paying the taxes, and, as between the parties, was regarded as the absolute owner. The father, consenting to the transaction, could not have defeated the lien of John on the land to the extent of the money advanced, and at the death of the old man the inheritance passed to Levi, subject to this incumbrance.

When this action by William Stewart, the present appellant, was instituted, he knew of the existence of the lien, and called on the appellee John Hoskins to make discovery. John Hoskins filed an answer to the petition of Stewart, setting up his lien or claim under the two writings of 1868 and 1876; and, when filed, a general demurrer was sustained to the answer, for the reason that it constituted no defense, and a judgment rendered subjecting one-half the land to the payment of the appellant's (Stewart's) judgment against Levi. From that judgment an appeal was prosecuted by John Hoskins to this court, and the judgment reversed; this court adjudging that the answer presented a defense to the action. While the appeal was being prosecuted, the land was sold, and purchased by William Stewart, the sale confirmed, and a conveyance made to him by the commissioner.

On the return of the case, the present appellee, John Hoskins, moved to set aside the sale, and cancel the conveyance. That motion was properly overruled. The land had been sold under a judgment holding there was no lien, and the purchaser took it free of that incumbrance upon it. The right to the lien, however, was litigated on the return of the case, and very properly, as John Hoskins had no remedy against the appellant, William Stewart, until his lien was established. Levi Hoskins was insolvent; and if, by the litigation between the appellant and John Hoskins, the latter was adjudged to have a prior lien, then the appellant, having appropriated to his own use, or rather having acquired title to the land from a judgment that was erroneous, but under a valid sale, must account to the appellee John Hoskins for the value of the land bought, to the extent of the lien. If the land is not worth the lien, then the value is all that can be recovered.

The chancellor below, instead of rendering a personal judgment, determined that John Hoskins had a prior lien, and subjected the land to that lien, when it had already been sold free of that incumbrance. A judgment may be erroneous; but, the court having jurisdiction of the subject-matter and the parties, all sales under it, if valid otherwise, will pass title. The remedy to prevent the sale is by a supersedeas, but none seems to have been executed in this case. The party who has been deprived of his property or his lien on land by an erroneous judgment is not without remedy against his adversary who has acquired title to the property under the judgment. He can require him to account for the value of the property thus obtained, and such should have been the judgment below. The appellee John Hoskins having been deprived of his lien on the land by the purchase made by the appellant, he is entitled to recover of the appellant the amount of his lien, with the interest, in a personal judgment against him; it appearing from the record that the land was worth $1,500 at the time of appellant's purchase. It is not a lien on the land because it was sold free of the lien.

As John Hoskins is insisting, since the return of the cause, that the sale of 1868 was a purchase, and desires the land, the appellant may, if he sees proper, reconvey the land to the appellee John Hoskins, as this is the right asserted by the latter; but, if he fails to do so, a personal judgment must be rendered against him, and upon the payment of the debt by the appellant the chancellor will require John Hoskins to assign to the appellant, without recourse, the judgment against Levi Hoskins.

The judgment enforcing a lien on the land in favor of John Hoskins is reversed, as no lien exists, and cause remanded for proceedings consistent with this opinion.

Ky.App. 1887.

STEWART v. HOSKINS and others.

3 S.W. 124, 8 Ky.L.Rptr. 696



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