Sewell v. Drake

• Decision Date: 21 March 1905
• Parties: SEWELL v. DRAKE.
• Court: Kentucky Court of Appeals

85 S.W. 748

SEWELL v. DRAKE.

Court of Appeals of Kentucky.

March 21, 1905

Appeal from Circuit Court, Powell County.

"Not to be officially reported."

Action by P. Y. Drake against J. A. Sewell. Judgment for plaintiff. Defendant appeals. Reversed.

W. J Jackson, for appellant.

C. F Spencer, for appellee.

NUNN J.

The appellee instituted this action against appellant on the 9th of October, 1903, to recover on a promissory note for $170.67. He also alleged in his petition that after the creation of the debt and the execution of the note the appellant had purchased from one John Bradley a tract of land in Powell county, on the waters of Brush creek, and that he had paid Bradley therefor, and had taken the title in himself, but had never had the deed recorded. He prayed judgment for his debt, interest, and costs; that he be adjudged a lien on this land; and that it be sold in satisfaction of his debt. The appellant was served with process, and at the November term of the Powell circuit court, he having failed to plead, the petition was taken for confessed, and a judgment was rendered against him for the amount of the note, and appellee was adjudged a lien on the land for the payment thereof; and the commissioner was directed to sell it, which was done, and appellee became the purchaser. After this the appellant filed a pleading asking for a modification of this judgment and the setting aside of the sale. The appellee filed what is termed an answer to this pleading, but the court took no action on these last two pleadings.

The appellant has appealed from so much of the judgment referred to as gave appellee a lien on the land described, from the enforcement thereof, and the sale thereunder. We are of the opinion that the appellant is entitled to the relief sought. It was error for the court to adjudge a lien in favor of appellee on appellant's land. There is not the slightest pretext that appellee had any lien on this land for the payment of his debt. He alleged in his petition that appellant had purchased and paid for this land since the creation of his debt. This fact did not give him any lien on this land; yet, if true, it could, under certain circumstances and proper proceedings, be subjected to the payment of this debt.

For these reasons, the judgment of the lower court is reversed with directions to the lower court to modify the judgment to the extent that it gives appellee a lien on the...