Brand v. Pryor

• Decision Date: 12 January 1909
• Citation: 115 S.W. 180,131 Ky. 271
• Parties: BRAND v. PRYOR et al.
• Court: Kentucky Court of Appeals

115 S.W. 180

131 Ky. 271

BRAND v. PRYOR et al.

Court of Appeals of Kentucky.

January 12, 1909

Appeal from Circuit Court, Graves County.

"To be officially reported."

Separate suits by Polk Pryor against N. S. Allison and by the Citizens' Savings Bank against the same defendant were consolidated, and, from the judgment in favor of plaintiffs against A. L. Brand, a purchaser of land sold pursuant to the judgment, based on his refusal to execute a bond for the amount at which the property was first sold to him, and its subsequent sale to him at a reduced price, the latter appeals. Affirmed.

W. J Webb, for appellant.

Lee &amp Hester, for appellees.

SETTLE C.J.

The appellees Polk Pryor and Citizens' Savings Bank each had a note against N. S. Allison, secured by a vendor's lien upon real estate. They instituted separate actions below for personal judgments against Allison and the enforcement of their liens. The suits were consolidated, and a judgment rendered in behalf of appellees as prayed. As directed by the judgment, the master commissioner, following the proper advertisement, sold the real estate in satisfaction of the debts of appellees, at which sale the appellant, Brand, being the highest and best bidder, became the purchaser of the property, and it was knocked off to him at the price of $2,975. He refused, however, to execute bond, claiming that he had not bid as much as $2,975. The sale and the appellant Brand's refusal to make the bond was reported to the court by the master commissioner, and the report of sale confirmed. Thereupon appellees obtained a rule against appellant to show cause why he should not be required to execute bond for the amount at which the property was sold to him. Appellant filed a response to the rule which was adjudged insufficient, as the following order will show "By agreement the material affirmative allegations contained in the reply to the response of A. L. Brand to the rule herein are controverted of record. The trial of the motion to require said A. L. Brand to execute bond for the real estate sold herein coming on, and the court, being advised, sustained said motion and adjudged the response insufficient, and it is further adjudged by the court that said Brand shall execute bond for $2,975, the amount for which he bid off said land, and interest at the rate of 6 per cent. per annum from the day of sale until paid, and, on his failure to execute said bond, then the master commissioner of this court shall sell said land again, and, if said land does not bring the above amount of $2,975, then said Brand shall pay the difference between the amount which said land brings at said second sale and said amount of $2,975, and it is further adjudged by the court that said Brand shall pay the costs incident to the rule issued and also the cost incident to the second sale should such sale be made." Appellant having failed to execute the bond required of him, the court at the succeeding term entered an order reciting that fact, and directing the master commissioner to resell the real estate described in the judgment. This he did, and one B. C. Seay bid off the same at the price of $2,975, but he, too, failed to execute the bond. Whereupon the master commissioner, without waiting to report the sale to the court at its next term, ignored and declared it of no effect, and proceeded to again advertise and sell the property, at which sale appellant again became the purchaser, but at the price of $2,500, which was $475 less than his bid at the first sale at which he was the purchaser. He executed bond for the $2,500, bid by him for the property at the last sale, and at the next term of the court the sale was reported to the court by the commissioner, and an order entered duly confirming it. After the confirmation of the last sale, appellees filed in vacation an amended petition against the appellant Brand, in which they set forth the facts with respect to his two purchases...