Hart v. Smith

1 Ky. Op. 311

• Court: Court of Appeals of Kentucky
• Decided: October 9, 1866
• Status: Published

Opinion

Opinion oe the Court by

Judge Williams:

The appellees and assiguees of the appellant have sufficiently explained the delay in issuing execution upon the judgment against the obligor in the note assigned. This delay, under the circumstances, was not of a character to release the assignor from his implied obligation to refund the consideration for the assignment should the obligor prove insolvent.

Nor can the delay of-three or four days, under the circumstances, after its issnal before it came to tbe sheriffs bands have such an effect. The real estate held by the execution debtor seems to have been by unrecorded deeds. He surrendered this property to the sheriff in satisfaction of execution in his hand previous to the judgment of appellees against him, and these executions seem to have been levied on his property. Tbe sheriff was not bound to levy on tbe right of redemption to lots and land when there was no evidence of the legal title only in possession of the defendant, and when he would not surrender the property for the purposes of levy.

The deeds hy which the execution debtor held his title were of several years antedated to the execution and had never been recorded or lodged for record in the proper office, consequently were equitable titles until lodged for record.

Such titles are not leviable without tbe consent of tbe bolder. None of tbe executions issued on judgments rendered at the same term of this judgment against tbe defendant in this execution seem to have been made, and the fact that fifteen executions were returned by the officer at tbe same time, no property found, strongly indicates a total insolvency of tbe debtor.

Tbe judgment is affirmed.