Commonwealth, Thompson's Heirs, &C. v. Jackson, &C.
| Decision Date | 06 March 1874 |
| Citation | 73 Ky. 424 |
| Parties | Commonwealth, Thompson's heirs, &c. v. Jackson, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM DAVIESS CIRCUIT COURT.
GEO. W. WILLIAMS, For Appellants.
SWEENEY & STUART, R. H. TAYLOR, For Appellees.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
This case differs from that of McBurnie v. Overstreet (8 B. Mon. 300) in this: here the levy was indorsed on the execution at the time it was made, and the levy, sale, and return were all made while the sheriff was in office; in Overstreet's case the levy and sale were embraced in the same return, and were both indorsed on the execution after the term of the sheriff had expired and nearly a year after the sale. The court was nevertheless of opinion that the return was prima facie evidence of both the levy and the sale, but subject to be impeached and falsified by extrinsic testimony. We do not decide that the same rule could not apply in a case like this; but we are free to say that it should be allowed to control only where the presumption arising from the return of the officer is impeached by testimony of the clearest and most convincing character. The testimony before us falls far below the standard indicated. The court below therefore properly held the levy to be sufficient.
So far as the heirs at law and the general creditors of Thompson are concerned, it is indifferent whether Robards had or not accepted the deed to the land in Union County before the levy and sale under the Pegram execution.
Thompson, by executing, acknowledging, and causing the deed to be recorded, and by his participation in the sale and in the preliminary steps attending it, estopped himself from questioning the title acquired by the purchaser. Those claiming through or under him can occupy no more favorable attitude than that occupied by him while living.
The inadequacy of price is not so gross as to authorize the sale to be set aside on that account alone. The real contest in the case is between the commonwealth and Jackson, the execution purchaser.
The evidence shows with a reasonable degree of certainty that Robards, the grantee in the deed, was not apprised of its execution until after the 31st of January, 1871, the day upon which the commonwealth claims its lien attached to all the estate of Thompson by reason of the rendition of a judgment against him as trustee of the jury-fund for Daviess County by the Franklin Circuit Court.
As Robards was not aware of the execution of the deed, and as there is no proof that it was executed pursuant to an antecedent arrangement or contract, the ordinary presumption of law that a grantee does accept a conveyance made for his advantage does not apply in this case.
To pass the fee-simple estate in lands the conveyance must not only be executed and tendered to the grantee, but must be accepted by him. Until it is accepted the estate remains in the grantor; and if the rights of one of his creditors intervene before the acceptance, the interest acquired by such creditor will be protected against the claims of the grantee or any one holding under his title.
Appellee insists that the presumption arising from the delivery of the deed to the clerk ought to conclude the commonwealth. The clerk was not the agent of Robards to accept the conveyance. After it was recorded it was redelivered to Thompson, and remained in his possession up to the time of his death.
Thompson's letter of December 15, 1869, does not indicate an intention upon his part to make the conveyance to Robards. It tends to show that he was then expecting to indemnify him out of the proceeds of certain notes secured by mortgage on Owensboro property.
The fair presumption from all the facts proved is that Thompson executed the conveyance for the sole purpose of enabling the sheriff to levy the executions issued on the sale-bonds of Robards on the land, intending thereby to protect Robards against further annoyance. In furtherance of this intention it was not necessary that Robards should be informed of what Thompson had done; and the statements of Thompson, proved by Yeiser and read by the court without objection, establish that Robards was not informed of the execution of...
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