| 33 Ky.L.Rptr. 327 |
|---|
| Court of Appeals of Kentucky. |
| ATTAY v. KNOX GEM COAL CO. et al. |
| May 15, 1908. |
| ACTION: Affirmed. |
Appeal from Circuit Court, Knox County. "Not to be officially reported." Action by Richard Attay against the Knox Gem Coal Company and others to recover possession of land under a sheriff's deed. From a judgment finding plaintiff entitled only to a lien on the land, he appeals. HOBSON, J. Richard Attay recovered a judgment in the Knox circuit court against the Knox Gem Coal Company for $213.75, with interest and costs. On June 23, 1902, an execution was issued on the judgment and levied on a tract of land that was the property of the coal company. The land was sold on July 28, 1902, and was bought by Attay for his debt. The land not having been redeemed, Attay received a sheriff's deed for it, and instituted this proceeding by notice, under the statute, to recover possession. The company and W. C. Freeman were made defendants to the motion. On final hearing the circuit court held that Attay acquired a lien on the land by the levy of his execution for his debt, interest, and costs, and adjudged a sale of the land for the debt, under section 1691 of the Kentucky Statutes of 1903. From this judgment Attay appeals. Section 1691, of the Kentucky Statutes of 1903, which is a part of the act regulating a proceeding of this character, is as follows: "If it appears in the proceedings aforesaid that the title of the defendant in the execution to the land sold was only equitable, or the land incumbered by mortgage or lien, the court shall, if the purchaser require it, subject the land to the payment of the debt of the execution creditor in the same manner it would do if there was a return of no property found, and may cause such pleadings to be filed and parties brought before the court as may be necessary to a final equitable judgment in respect to the rights of all parties interested." The facts as shown on the trial were these: The Knox Gem Coal Company prior to the year 1902 had become greatly involved, and suits had been brought against it to enforce payment of the debts. It had bought the tract of land in controversy from John A. Black for $10,000, and owed Black a balance of something over $3,000 on the purchase money. W. G. Freeman, who was president of the company, had advanced to it money from time to time, and had a claim against it for $16,000 for money which he had advanced. Black sued to enforce his vendor's lien, Freeman sued and took out an attachment lien, and other creditors brought suits with attachments. These suits were consolidated, and at the January term, 1902, the land was ordered sold in the consolidated actions for the satisfaction of the debts. No sale, however, was made under the judgment, for the reason that Freeman paid off the lien debt of Black and compromised with a number of the creditors under an arrangement he had made with the other two stockholders in the company, by which he was to take their stock and assume the debts of the company. This was the situation of the title at the time Attay's execution was issued in June following, and at the time the land was levied on and sold. The land not only cost the company originally $10,000, but it had spent on it considerable other sums in opening a coal mine. When Freeman paid Black the balance of his purchase-money lien, as between him and the company, he was entitled by subrogation to Black's lien on the land, for the debt was the debt of the company. Freeman also held an attachment lien on the land for his own debt, and the judgment ordering a sale of the land had not been executed. It is clear, therefore, that the case falls literally within the provisions of section 1691, Ky. St. 1903, and that the court properly held that Attay was entitled only to a lien on the land for his debt by reason of the levy of his execution. The answer which Freeman filed was sufficient to raise all the questions presented by the proof. The judgment is in accord with the rights of the parties, and does substantial justice. Judgment affirmed. Ky.App. 1908. ATTAY v. KNOX GEM COAL CO. et al. 110 S.W. 345, 33 Ky.L.Rptr. 327 |
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