Dils v. Hatcher

• Decision Date: 22 October 1902
• Citation: 69 S.W. 1092
• Parties: DILS v. HATCHER.
• Court: Kentucky Court of Appeals

69 S.W. 1092

DILS v. HATCHER.

Court of Appeals of Kentucky.

October 22, 1902

Appeal from circuit court, Pike county.

"Not to be officially reported."

Action by John A. Dils against James Hatcher. Judgment for defendant. Plaintiff appeals. Affirmed.

Jas Goble and W. S. Pryor, for appellant.

Edward W. Hines and J. M. York, for appellee.

WHITE J.

On September 24, 1895, Ann Dils sold and by deed conveyed to appellant, John A. Dils, her son, appellee, Hatcher, and James M. York, jointly, all the timber on a 5,000-acre tract of land in Pike county, of certain dimension, for consideration paid by Dils and York and to be paid by Hatcher. Subsequent to this sale Hatcher bought the interest of York, and was then the owner of two-thirds, and appellant the owner of one-third, of the timber. Certain creditors of appellant, John A. Dils, having obtained judgments and executions, had the sheriff levy same on the undivided interest of Dils in this timber, and after advertisement the same was sold, and bid in by S. J. Salyer, attorney for the execution plaintiffs. This bid was subsequently transferred to appellee, Hatcher, and he thereby claimed to be the owner of the whole of the timber, and proceeded to cut and remove same, and appropriate the proceeds to his own use. Appellant brought this action, seeking judgment against appellee for $16,272.66 for conversion of the one-third of the timber that being the alleged value of one-third of same. The petition alleges the purchase jointly, and the purchase by appellee of York's interest, but ignores the execution sale of appellant's interest, and says that the appellee without right, wrongfully and unlawfully has possession of appellant's interest, and refuses to surrender possession to him. The answer pleads the execution sale and purchase above set out. By reply, appellant denied the validity of the execution sale, or that title passed thereby, for various irregularities in the judgments and executions, none of which we deem necessary to notice, as on trial the proof showed everything to have been regular. Another reason upon which the execution sale is attacked is that the timber was personalty, and was partnership property, and therefore could not be sold under execution, or, if sold, the purchaser only acquired a lien for the amount paid. This presents the material question in the case. The lower court upheld the execution sales and dismissed the petition, and hence this appeal.

Section 660, Civ. Code, applies to levies of executions upon personal property held by the execution debtor jointly with another...