Leopold v. Furber

• Decision Date: 11 September 1886
• Parties: LEOPOLD v. FURBER.
• Court: Kentucky Court of Appeals

1 S.W. 404

84 Ky. 214

LEOPOLD v. FURBER.

Court of Appeals of Kentucky.

September 11, 1886

Appeal from Campbell circuit court.

Alvin Duvall, Chas. J. Helm, and F. J. Sutton, for appellant Frederick Leopold. J. F. & C. H. Fisk, for appellee, Charles Furber.

LEWIS J.

The plaintiff in this case, in his petition, asked for personal judgment on two of the notes then due, and also for the enforcement of the vendor's lien; sale of the seven tracts of land for the satisfaction of all the notes given for the purchase money, although three of them had not then matured. In accordance with the prayer of the petition, the court, at its January term, 1884, rendered personal judgment for the aggregate amount of three of the notes, the third having then become due, and gave the right to execution thereon. It was further adjudged at the same time that the plaintiff was then entitled to an enforcement of his lien on all the tracts of land for the payment of all five of the notes, as well those not due as those due, and the master was authorized and directed to make sale thereof for that purpose. But it was provided that, in case the plaintiff caused an execution to issue, the judicial sale should not be made by the master until the return of the execution, and not then if the amount for which the personal judgment was rendered has been satisfied by a sale under the execution, or by voluntary payment thereof. From that judgment the defendant prosecutes this appeal, and February 29, 1884, executed a supersedeas bond, in which, after reciting the judgment as rendered, that he prayed an appeal therefrom, and desired to supersede it, he covenanted, as provided by the Civil Code in such cases; and, upon the execution of that bond, the clerk of the court rendering the judgment issued a supersedeas, which is still in force, commanding appellee, and all others, to stay proceedings on the entire judgment, as well that part of it in personam as that part which enforced the lien, and directed a sale by the master.

Section 376, Civil Code, provides that, "in an action to enforce a mortgage or lien, judgment may be rendered for the sale of the property, and for the recovery of the debt against the defendant personally."

An answer was filed by the defendant in the case, which was subsequently, for cause, stricken from the files, and afterwards an amended answer was tendered, but rejected. But clearly, neither the original nor amended answer stated facts constituting a defense to the action, which counsel for appellant seem to concede. The judgment may be considered as having been rendered by default; and as, under the Civil Code, appellee was entitled to a judgment against appellant personally, for the amount of the three notes then due, there was no error by the lower court in rendering it, and to that extent the judgment must be affirmed. And it therefore...