Daviess v. Myers

• Decision Date: 21 January 1852
• Citation: 52 Ky. 511
• Court: Kentucky Court of Appeals
• Parties: Daviess <I>vs.</I> Myers.

52 Ky. 511

Daviess vs. Myers.

Court of Appeals of Kentucky.

January 21, 1852.

APPEAL FROM LOUISVILLE CHANCERY COURT.

Judge SIMPSON delivered the opinion of the court.

The slaves in contest in this case belonged to the estate of J. H. Daviess, deceased. They were assigned to his widow as part of her dower in her deceased husband's estate. A judgment having been subsequently recovered against Rowan, the executor of J. H. Daviess, an execution that issued thereon was levied upon the reversionary interest of the slaves in the possession of the dowress, which was sold under the execution, and purchased for her benefit. She then claimed the slaves as her own absolute property, and at her death devised them to Mrs. Jane Taylor.

A controversy exists between the owner of the reversionary interest in the slaves, and the devisee of the dowress, in relation to the title to them. In an action of detinue, brought for them by the reversioner, it was decided that his interest passed by the execution sale, and that the legal title to the slaves was in the devisee. (Myers v. Daviess, 10 B. Monroe, 394.)

He then instituted this suit in chancery, in which he attempts to impeach the sheriff's sale; but to sustain his claim to the slaves, relies mainly upon the ground that the purchase made by the dowress should, in equity, be treated as a purchase for their joint benefit, inasmuch as the debt for which the judgment had been obtained, and to satisfy which the slaves were sold, was a charge not merely on the reversionary interest, but upon the whole estate in the slaves.

The objection made to the sheriff's sale, upon the ground that the proceedings under the execution had been stayed, and the sale was made after the return day thereof, cannot be sustained. The execution was not returned stayed by the order of the plaintiff, but the proceedings under it were stayed, and the execution was retained by the officer. The levy of course still existed, and when the plaintiff directed the sale to be made, the sheriff had full power to make it. In the cases referred to, (4 Bibb, 338; 8 B. Mon., 411,) where it was held that the levy had been released the executions were returned stayed by the plaintiff. Here the proceedings under the execution merely were stayed, not the execution itself, and as the sheriff did not return the execution, it is evident that the levy was not intended to be released. But this question was necessarily involved in the suit at law, in determining the validity of the sale, and must be regarded as a matter that has been settled and adjudged between these parties.

We have not been able to procure any foundation for the charge that the sale was fraudulent, so that the result of this controversy must depend solely upon the question, whether in equity the purchase...