Earl v. Porter

Court of Appeals of Kentucky

Earl v. Porter

11 Ky. Op. 85, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 153

DecidedMarch 2, 1881

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This text of 11 Ky. Op. 85 (Earl v. Porter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Earl v. Porter, 11 Ky. Op. 85, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 153 (Ky. Ct. App. 1881).

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Opinion

Opinion by

Judge Hines:

As the appeal here is from the judgment directing the sale, and not from the order confirming it, a reversal could not affect the title of the purchaser, notwithstanding the fact that the purchaser was an attorney of record in the case, and must be presumed to be cognizant of whatever defect there may have been in the proceeding. Although the purchaser may be a party to the action he acquires the same rights by purchase under the decree as if he were a stranger to- the record. The case of Miller v. Hall, 1 Bush (Ky.) 229, is practically overruled in Yocum v. Foreman, 14 Bush (Ky.) 494.

There was no error in decreeing a sale of the entire tract of land. It is alleged in an amended petition, and not denied, that to divide [86]*86the tract would impair its value. Buckner & Bullitt’s Civ. Code (1876), § 694, authorized such a sale when the court is satisfied “by the pleadings,” etc., that the land can not be divided without materially impairing its value. Besides, it does not appear that appellants’ rights have been prejudiced, since the whole tract sold for less than the debt.

William Lindsay, for appellants. W. B. Bradley, Geo. Husbands, for appellees.

[Cited, Talbott v. Campbell, 23 Ky. L. 2198, 67 S. W. S3.]

As against H. O. Earl, the decree for the ten per cent, interest, founded upon his agreement to pay that amount of interest and enforcing its payment out of the land on which the debt was a lien, is not erroneous, and as to Mrs. Earl it is not a reversible error, because when that amount is deducted from the judgment it leaves the purchase-price insufficient to satisfy the lien debt.

There was no error in decreeing the sale of the whole tract of land, because Mrs. Earl was a joint owner. The whole of the land was bound for the payment of the debt, and her liability could be enforced in no other way than by a sale of her interest, as no personal judgment could be rendered against her.

Judgment affirmed.

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Opinion by

Judge Hines:

As the appeal here is from the judgment directing the sale, and not from the order confirming it, a reversal could not affect the title of the purchaser, notwithstanding the fact that the purchaser was an attorney of record in the case, and must be presumed to be cognizant of whatever defect there may have been in the proceeding. Although the purchaser may be a party to the action he acquires the same rights by purchase under the decree as if he were a stranger to- the record. The case of Miller v. Hall, 1 Bush (Ky.) 229, is practically overruled in Yocum v. Foreman, 14 Bush (Ky.) 494.

There was no error in decreeing a sale of the entire tract of land. It is alleged in an amended petition, and not denied, that to divide [86]*86the tract would impair its value. Buckner & Bullitt’s Civ. Code (1876), § 694, authorized such a sale when the court is satisfied “by the pleadings,” etc., that the land can not be divided without materially impairing its value. Besides, it does not appear that appellants’ rights have been prejudiced, since the whole tract sold for less than the debt.

William Lindsay, for appellants. W. B. Bradley, Geo. Husbands, for appellees.

[Cited, Talbott v. Campbell, 23 Ky. L. 2198, 67 S. W. S3.]

As against H. O. Earl, the decree for the ten per cent, interest, founded upon his agreement to pay that amount of interest and enforcing its payment out of the land on which the debt was a lien, is not erroneous, and as to Mrs. Earl it is not a reversible error, because when that amount is deducted from the judgment it leaves the purchase-price insufficient to satisfy the lien debt.

There was no error in decreeing the sale of the whole tract of land, because Mrs. Earl was a joint owner. The whole of the land was bound for the payment of the debt, and her liability could be enforced in no other way than by a sale of her interest, as no personal judgment could be rendered against her.

Judgment affirmed.

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11 Ky. Op. 85, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earl-v-porter-kyctapp-1881.

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