Adams v. Keiser
| Citation | 37 Ky. 208 |
| Parties | Adams v. Keiser. |
| Decision Date | 17 October 1838 |
| Court | Court of Appeals of Kentucky |
FROM THE CIRCUIT COURT FOR FAYETTE COUNTY.
Mr. R Wickliffe and Mr. Owsley for appellant.
Messrs Robinson and Johnson for appellee.
Statement of the case.
On the trial of this ejectment, which was brought on the demise of Polly Adams, the title of the lessor was deduced through a sheriff's sale and deed, made under a judgment and execution in favor of George Adams, against Keisers and others, for two thousand five hundred and eighty-six dollars and sixty-nine cents damages, and $18.31 1/2 costs. The sheriff returned, in substance, that he had levied upon a lot of about four acres of land, at the junction of Hill and Main-cross streets, in the city of Lexington; which, after due advertisement, & c., he had sold to the plaintiff in the execution (as the highest bidder), at the price of two thousand six hundred and sixty seven dollars and seventeen cents, which was ordered as a credit on the execution in full.
The recitals of the deed correspond with the foregoing statement of the execution and return. And, on motion of the defendant the Court, after inspecting the original execution and return, and causing the sheriff's commissions to be calculated, whereby it appeared that the price for which the lot was sold, exceeded the true amount due on the execution, by the sum of six and a half cents, instructed the jury that, for this excess, the sale and deed were void, and passed no title, and that they should find for the defendant. A verdict was ac cordingly found for the defendant, and a judgment ren dered thereon: for the reversal of which, the plaintiff has appealed to this Court-- presenting, as the only point for our consideration, the question whether the Circuit Court erred in the instruction above stated.
The statutes subjecting lands to sale under execution for the satisfaction of debts, do not authorize the sheriff to sell more land than is sufficient to satisfy the execution. This limitation upon the authority of the officer, plainly deducible from the objects and intention of the statutes conferring the authority, has been declared and enforced in the numerous cases by this Court. Patterson v. Carneal's Heirs, 3 A. K. Marshall, 618; Knight v. Applegate's Heirs, 3 Mon. 338; Pepper v. The Commonwealth by Thornton, 6 Mon. 30; Davidson v. McMurtry & c., 2 J. J. Marshall, 68; Carlisle v. Carlisle, 7 J. J. Marshall, 624; Stover v. Boswell, 3 Dana, 235; Addison v. Crow & c., 5 Dana, 277.
It is well settled that, where an officer, having levied an execution upon land, sells more than is necessary to satisfy the execution, he exceeds his authority, and the sale is void in toto. But--
In each of the foregoing cases, a sale by the sheriff, of more land than was sufficient for the satisfaction of the judgment and execution, is declared to be an excess of the authority conferred upon him by law; and in the absence of other sufficient authority, the entire sale was pronounced to be void, because it could not be so split up as to be good for a part and void for the residue (Patterson v. Carneal's Heirs, & c. Pepper v. The Commonwealth, supra. ) The question now is, whether, under the authority of these cases, or of the general principle which limits the power of the sheriff to the purpose for which it was conferred, the sale under the execution of Adams, was properly declared void by the Circuit Court.
A sheriff, having levied a large execution on a valuable town lot, sold the whole of it, for what he supposed to be the precise amount of the execution; but it was afterwards discovered that, in consequence of a trifling error in calculating what the execution amounted to, the lot had been sold for six and a half cents more than enough to satisfy it. There was no evidence or reasonable presumption, that any part of the lot would have produced a sufficient sum, or that any more than the true amount of the execution would have been bid for the whole; or that the lot could have been so divided as to have left to the debtor a piece of any value; held, that the circumstances of this sale do not show that the sheriff did in face exceed his authority; that the sale should not be deemed void for so minute an error--injurious to no party. and is good and valid, so that the title passed by the sheriff's deed.
In the examination of all the cases upon this subject it is to be observed, that not one of them attempts to lay down any general rule for the ascertainment of the fact, that more land has been sold than was necessary for the satisfaction of the execution, and that the facts of each case left no room for doubt that, in that particular case, not only more had been sold than was necessary, but that the excess sold, above the quantity which might have satisfied the debt, was something substantial. In the first case, (3 A. K. Marshall 618,) the execution was for seventy four dollars and twenty three and a half cents, and the sheriff sold four thousand acres of land, for three hundred and seventy dollars; and in every case it appeared--first, that the excess in the amount of money made by the sale, above the amount required and authorized by the execution, was in itself of substantial value, regarded as so much money; and, second, that, estimating the value of the land, either by the sum for which it was sold, or by other evidence, the excess in the amount of money made represented a portion of the land of substantial value, either for use or for sale; and, third, these circumstances or others in the case demonstrated, that the proper amount of money might have been made by a sale of less than the whole quantity, and that less than the whole quantity might have been sold, without material practical injury to either party, and with substantial advantage to the debtor. In the first case already stated, in which the convenient divisibility of the land is entirely apparent, the Court say, if the sheriff had pursued the proper mode in offering the land for sale, " it is not easy to conjecture that...
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