| 24 Ky.L.Rptr. 1521, 114 Ky. 716 |
|---|
| Court of Appeals of Kentucky. |
| GOODIN v. WILSON. |
| Feb. 4, 1903. |
| ACTION: Affirmed. |
Appeal from circuit court, Knox county. "To be officially reported." Action by Mary J. Goodin against John H. Wilson. From a judgment for defendant, plaintiff appeals. BARKER, J. Appellant, Mary J. Goodin, obtained a money judgment against appellee, J. H. Wilson, in the Knox circuit court, upon which she caused to be issued an execution, which was placed in the hands of the sheriff of Knox county for the purpose of enforcing satisfaction of her demand. The sheriff attempted to levy said execution upon a tract of land, described by metes and bounds in his return on the writ, as the property of appellee. This execution was returned by the sheriff without further action than the indorsement of the levy, whereupon the appellant, for the purpose of enforcing her supposed lien, instituted this action in the Knox circuit court, setting up her judgment, the execution thereon, and the levy of the officer upon said land, and reciting the fact that appellee's title to the land in question was obtained by a purchase at decretal sale in the case of Tinsley v. Tinsley, in the Knox circuit court; that appellee had purchased said land for the sum of $2,000, for which he had executed bonds payable to the commissioner of said court, one W. F. Westerfield, who was made a party defendant to the action, and called upon to set up and enforce his lien for the unpaid part of the purchase money, which appellant alleges she was advised amounted to about $400. The petition recites the further fact that while appellee's bid had been accepted, and the sale to him confirmed by the court, no deed had ever been executed or delivered to him for the land in question. An entirely immaterial amended petition was filed by appellant, whereupon a general demurrer was filed by appellee, J. H. Wilson, to the petition as amended, which was sustained by the court; and, appellant declining to plead further, her petition was dismissed, and she has appealed to this court. The question for adjudication on this appeal is whether or not the land in question, under the foregoing statement of facts, was subject to levy and sale under an execution. Land is subject to levy under execution in Kentucky only when the execution defendant holds the legal title thereto. A mere equitable title of a debtor cannot be thus subjected to the satisfaction of a creditor's claim. It becomes, therefore, necessary to ascertain whether or not, under the allegations of the petition in this case, the debtor, Wilson, had a legal or mere equitable title in the land alleged to have been purchased by him at a judicial sale; his purchase having been confirmed by order of the court, and himself put in possession of the land in question, but for which there had not been executed and delivered to him a commissioner's deed. In other words, does a purchaser at a judicial sale obtain a legal title by the order of confirmation of the court, or by the execution and delivery of the commissioner's deed in pursuance of the order of the court? The contention of appellant's counsel that the right of possession and the right to receive rents necessarily carries with it the legal title cannot be maintained. There are many instances where the legal title may be in a trustee, with the possession and the right to the usufruct of the property remaining in the cestui que trust. It seems to us therefore, that the title of appellee, Wilson in the land in question, was merely an equitable one, and that, as such, it was not subject to levy or sale under execution, and that appellant's remedy for subjecting the same to the payment of her debt. Holding this view, we think the court below did not err in sustaining the demurrer to the petition as amended, and, upon appellant's refusal to plead further, in dismissing her petition. Wherefore the judgment is affirmed. Ky.App. 1903. GOODIN v. WILSON. 71 S.W. 866, 24 Ky.L.Rptr. 1521, 114 Ky. 716 |
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