Shirleys v. Taylor's Heirs

• Decision Date: 25 September 1844
• Citation: 44 Ky. 99
• Parties: Shirleys <I>vs</I> Taylor's heirs.
• Court: Kentucky Court of Appeals

Page 99

44 Ky. 99

Shirleys vs Taylor's heirs.

Court of Appeals of Kentucky.

September 25, 1844.

ERROR TO THE LOUISVILLE CHANCERY COURT.

JUDGE BRECK delivered the opinion of the Court.

IN 1821, the Bank of Kentucky recovered a judgment in the Jefferson Circuit Court, against Edmund H. Taylor, for $4561 66 2/3 and costs. In virtue of an execution which issued in 1823, the judgment was replevied. The replevin bond was signed "Ed. H. Taylor, by Charles M. Taylor," and by Charles M. Taylor and Jas. M'Donald, as sureties. In November, 1824, an execution issued upon this bond, endorsed that notes upon the Bank of Kentucky or Bank of the Commonwealth of Kentucky, would be received in discharge thereof. This execution was levied upon a tract of land in the county of Jefferson, belonging to Ed. H. Taylor, which was afterwards, in July, 1825, sold under a venditioni exponas, and purchased by the Bank, at the price of four thousand dollars. The tract was levied on as containing 371¾ acres, more or less, and so sold and conveyed to the Bank. The sale was in gross and not by the acre. The residue of the claim was finally discharged in 1828. The land thus purchased, was sold to John and William Shirley, by the Bank, in 1829, for $3750, and conveyed in 1834.

In 1838, Ed. H. Taylor died, and his heirs and administrator, in 1840, exhibited their bill in Chancery against the Shirleys and the Bank of Kentucky, setting forth in addition to the preceding facts, that their ancestor, the said Ed. H. Taylor, was of unsound mind from 1818 till his death. That he was found to be of unsound mind by the inquisition and judgment thereon, of the Jefferson Circuit Court, prior to the institution of the suit by the Bank, and was a lunatic at the date of the said replevin bond and sale of said land. They insist that the replevin bond and sale were void; that the Bank acquired no title, and that the Shirleys, in their purchase from the Bank, acquired none. They also alledge, that the land sold for an inadequate price, and that the tract instead of 371¾ acres, contained exceeding four hundred and fifty. They pray that the replevin bond and sale and conveyances, may be declared void, and the possession of the land restored to them upon such terms as the Chancellor may deem equitable.

The defendants answer and deny that Ed. H. Taylor was of unsound mind at the date of the judgment or replevin bond, they deny that the land sold for an inadequate price, and resist the relief sought.

The Chancellor decreed the replevin bond and sale of the land void, directed an account of rents and improvements to be taken, and after deducting the excess of rents over improvements from $3910, the nett proceeds of the sale under execution, decreed that the heirs of Taylor should pay the residue, being $3261 50, to the Shirley's, and upon their failure to pay the same as directed, that the land or so much thereof as might be necessary to discharge the same, would be subjected to sale, and that the Shirleys surrender possession of the land to the complainants.

To reverse that decree, this writ of error is prosecuted by the Shirleys.

In the revision of the cause, we will first enquire, whether the complainants have established any claim for relief, unless it be upon the alleged ground of their ancestor's lunacy or unsoundness of mind. There is neither allegation nor proof that the judgment was not rendered upon a just and legal demand. There is no intimation, nor is there any proof of any fraud, mistake or unfairness in reference to the judgment, the replevin bond or the sale. The replevin bond, as we have seen, is signed by "Ed. H. Taylor, by Charles M. Taylor." It is returned by the proper officer as the replevin bond of Ed. H. Taylor, and being so returned, acquires the force and effect of a judgment. The complainants alledge, that Charles M. Taylor had no authority to sign the name of his father to the bond, because he was of unsound mind, and incapable of giving such authority. It is not alledged nor pretended that the authority would not have been ample and the bond valid, but for their ancestor's lunacy or unsoundness of mind.

The testimony is satisfactory, that Charles M. Taylor acted as the agent of his father. The bond was subsequently recognised, and in effect confirmed by the committee of Ed. H. Taylor, as his bond. The authority of Charles M. Taylor was never questioned by either the committee, or by any one of a numerous family, so far as it appears, for more than seventeen years, and not until the institution of this suit. Besides, the presumption is authorized, that sufficient at least ostensible authority was produced to the officer when the bond was executed. We are of opinion the bond ought not to be held invalid, unless shown to be so by reason of the lunacy or unsoundness of mind of Ed. H. Talor, and upon that ground alone we understand the complainants as relying.

The allegation that the land sold for an inadequate price, is not sustained by the testimony. So far from it, we are fully satisfied from the evidence, that $4000, even in Kentucky Bank notes, which the Bank offered to receive in discharge of the judgment, although it is not intimated that the claim upon which it was rendered, was not for par money, was, at the time of the sale, a fair price. The same land was four years afterwards, sold by the Bank for $3750. Nor are we satisfied that the complainants have shown themselves entitled to any relief on account of the alledged excess in the tract over the supposed quantity. The land was levied on and sold as containing 371¾ acres, be the same more or less. The only evidence that it exceeds that quantity, is found in the answer of the defendant, William Shirley. He admits, that in a survey which he caused to be made, there appeared to be about 436 acres; but he does not admit there was that quantity, inasmuch as the lines are disputed by those persons who claim the adjoining land. John Shirley died upon the land, and his devisees, one of whom is an infant, deny the allegations of complainants in reference to a surplus. The tract was sold in gross, more or less, and we think the complainants have failed to establish an equitable claim for relief, upon the ground that there is more land in the...