White v. O'Bannon

• Decision Date: 17 September 1887
• Citation: 5 S.W. 346,86 Ky. 93
• Parties: WHITE and another v. O'BANNON and another.
• Court: Kentucky Court of Appeals

5 S.W. 346

86 Ky. 93

WHITE and another v. O'BANNON and another.

Court of Appeals of Kentucky.

September 17, 1887

Appeal from circuit court, Henry county.

George C. Drane, for appellants.

Wm Lindsay, for appellees.

BENNETT J.

In 1870 A. G. Roberts instituted two actions of debt, in the Shelby circuit court, against John W. and James H. White. Roberts sought in each action to recover judgment against John W. and James H. White on their joint indebtedness to him. About the same time, W. C. Basket brought suit in the Shelby circuit court against John W. and James H. White, for the purpose of recovering judgment against them on their joint indebtedness to him. John W. and James H. White were personally served with summons to answer each of the foregoing actions. Also orders of attachment against the property of both of the Whites were issued in each of the foregoing actions, and were directed to the sheriffs of Shelby and Henry counties. Those sent to Henry county were levied by the sheriff of that county on the ninth and twelfth of September, 1870, on a tract of land containing 140 acres, as the property of both the Whites. At the March term, 1871, judgment was rendered against both the Whites, by default, in each of the foregoing actions, and the attachment in each action was sustained, and the 140 acres of land, attached by the sheriff of Henry county, was ordered to be sold. The sheriff of Henry county was directed to make the sale. The sheriff, pursuant to said order, sold the land on the first Monday in January, 1872 and G. W. Bondurant became the purchaser of 62 1/2 acres, at the price of $1,354.74. At the October term, 1872, the commissioner of the Shelby circuit court (by the order of that court) conveyed the 62 1/2 acres to G. W. Bondurant. At the March term, 1871, of the Shelby circuit court, Shelby Scarce obtained personal judgment against John W. and James H. White, and execution was issued thereon and directed to the sheriff of Henry county, which was levied April 3, 1871 upon the same tract of land, but subject to said attachments. And on the first Monday in January, 1872, the sheriff sold 7 1/2 acres of the tract, which satisfied the execution. G. W Bondurant became the purchaser of this land. The two parcels thus bought by him on the same day amounted to 70 acres. Two or three years after Bondurant purchased the land, he conveyed it by deed, duly acknowledged and recorded, to Smith Guthrie, and he, in the same year, 1881, sold it by executory contract to the appellee James O'Bannon. On the twenty-third day of May, 1871, John W. White signed and acknowledged a deed to the 140 acres of land to Judge B. J. Peters, in trust, for the appellant Juliet White, which deed was recorded in the Henry county court on the third of June, 1871. In 1883, the appellees, James O'Bannon and Smith Guthrie, brought suit in the Henry circuit court against the appellants, Juliet White and her trustee, Judge B. J. Peters, for the purpose of removing the cloud from the title of 70 acres of land, which rested thereon by reason of the conveyance by John W. White to said Peters, in trust for Juliet White, and of quieting their title to the same. The appellants resisted the appellees' right to the relief sought, mainly upon two grounds: First, that the levy upon the land was void for want of a sufficient description of it; second, that Judge B. J. Peters, before and at the time of the issuing of the orders of attachment, and the levy, or pretended levy, of the same, was the owner of said tract of land, in trust for the appellant Juliet White. These grounds will be noticed in their order.

The sheriff's return on one of the orders of attachment reads as follows:

"Came hand September 11, 1870, at 10 o'clock A. M., and on the twelfth day of September, 1870, at 12 o'clock, I levied this attachment on about one hundred and forty acres of land near Eminence, Henry county, the property of defendants. The defendants not being found, and no person being found on the land, I posted a true copy of the within attachment on the door of the house on the land. A. H. DITTO, S. H. C."

The indorsement of the levy on each of the other orders of attachment is in the same language as the foregoing differing only in the dates of the respective levies. Are these indorsements sufficiently descriptive of the land levied on? We think they are. The appellants' counsel contends for the same particularity of description in the indorsement of a levy upon land, on an order of attachment, as is required in the indorsement of an execution of its levy upon upon land. Without deciding whether the indorsement upon these orders of attachment would be a sufficient indorsement on an execution of its levy upon land, it is sufficient to say that, in making the indorsement of the levy, a distinction is taken between the levy of an attachment and the levy of an execution. The levy of an attachment upon land is merely for the purpose of creating a lien on it, for the purpose of giving the court, issuing the order, jurisdiction of the property, that it may be thereafter, by the court's order, applied to the payment of the plaintiff's judgment, if he obtain one. And the court thus having control of the property, may, in its order of sale, enlarge the description as given by the sheriff's return, so as to accurately identify the land. In other words, after the sheriff has made his return of the levy, the property is then under judicial control, and the sale of it by the order of court is a judicial sale; and the court, while it cannot enlarge the quantity of property levied on, or substitute other property in its place, may disregard the descriptive language of the return, and ingraft in its order of sale an accurate description of the property, so that all persons may understand what property is to be sold, and for what property they are bidding. The court's deed recites these steps as connecting links of the purchaser's title, upon which he has the right to rely, as furnishing him all the title that the defendant had to the property attached. For these reasons, any words which designate and comprehend the property levied on are sufficient. The generality of the description makes no difference, provided it is sufficiently intelligible to fix the lien of the attachment. The sheriff, in his levy upon real property, and sale of it under execution, acts in a ministerial capacity. And by the levy, "when carried to a sale," the defendant is divested of his title to the property, and the purchaser is invested with title. The sheriff's advertisement usually recites the descriptive terms of the return upon the execution; and these terms are usually inserted in the deed. Indeed, they should be so inserted, in order that the deed itself may show a consecutive chain of title from the defendant in the execution to the purchaser. Therefore, greater precision should be required in the sheriff's return on an execution than on the order of...