Andrew v. Brim

• Decision Date: 05 November 1954
• Citation: Andrew v. Brim, 272 S.W.2d 668 (Ky. 1954)
• Parties: Ralph ANDREW, Appellant, v. W. S. BRIM et al., Appellees.
• Court: Supreme Court of Kentucky

Page 668

272 S.W.2d 668

Ralph ANDREW, Appellant, v.W. S. BRIM et al., Appellees.

Court of Appeals of Kentucky.

Nov. 5, 1954.

Harlan Heilman, Carrollton, for appellant.

James F. Thomas, New Castle, J. S. Shaver, Bedford, Charles I. Dawson, Rucker Todd, Louisville, for appellees.

MILLIKEN, Judge.

This is an independent action under Section 518, Civil Code of Practice, in which the appellant, plaintiff below, seeks to set aside an order confirming the sale of his real estate and to obtain an injunction forbidding the purchasers at the sale from interfering with his use and occupancy of the property.The appellant had taken exceptions to the order confirming the sale, which were overruled, and from a judgment in that same court refusing him the relief prayed in his independent action, he now appeals.

The sale of the property was sought by creditors of the appellant.There were two pieces of real estate involved: a piece of improved city real estate estimated to be worth between $7,500 and $8,500, and a farm valued at $4,500.At the sale by the master commissioner, the appellant, as owner of the property and highest bidder, bid $5,000 for the city property and $3,500 for the farm.He told the master commissioner that he would go get his bondsman, naming him, and return shortly.While he was gone, the master commissioner discovered that there was a mortgage against the real estate of the proposed bondsman, and, consequently, decided that he would not accept him as bondsman.Before the appellant returned the master commissioner again asked for bids on appellant's property, and at this second sale the city real estate was sold to the appellee Black for $2,750 and the farm to appellee Reed for $2,500.Mr. Black had bid $4,900 on the city property at the first sale, and thus within an hour later bought the property for $2,150 less.Appellant maintains that he could have supplied security other than the rejected bondsman for the deferred payments had he had the opportunity to do so.His motion to set aside the second sale was opposed by the appellee Black, and the chancellor decided to uphold the master commissioner and not set aside the order of confirmation.

In the present action, under Section 518, Civil Code of Practice, the appellant charges that the second sale was invalid because the master commissioner had no legal right to again sell the property without an order of court; that the appraisers at the sale were not sworn beforehand in compliance with the statute, KRS 426.520, never visited the property, made no...