Jackson v. Shackelford

Court of Appeals of Kentucky

Jackson v. Shackelford

2 Ky. Op. 142, 1868 Ky. LEXIS 306

DecidedJanuary 20, 1868

StatusPublished

This text of 2 Ky. Op. 142 (Jackson v. Shackelford) 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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Jackson v. Shackelford, 2 Ky. Op. 142, 1868 Ky. LEXIS 306 (Ky. Ct. App. 1868).

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Opinion

Opinion of the Ooubt by

Judge Kobebtson :

As writs of Yen. Ex. could not bave been legally issued for selling Johnson’s land unless it had been previously levied upon under fifia, the legal presumption, in the absence of any evidence to the contrary, must be that there had been such levy.

The appellants having -failed to produce or require the appellee to file all the executions which had been issued, the presumption of an execution lien arising from the undenied allegation and proof that writs of Ven. Ex. had been issued to sell the land, must be held to be-sufficient evidence of a legal levy on it which operated as a lien; and that lien is not shown to have been waived or lost. As the allegations and evidence sufficiently show that the appellee by advancing for Johnson about $700, discharged, as sheriff, all the execution debts except a small remnant still unpaid on the executions of the appellant he is entitled to subrogation to the lien of the creditors whose debts he thus satisfied.

The land was sold for the appellant’s legally subject to that lien; and, being sold for more than was due and for only a small portion of it’s value, the appellee, as substituted lien holder, had a right to have the sale set aside.

We perceive no essential error in the decree vacating the sale, nor in any other respect.

Wherefore, the judgment is affirmed.

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Opinion of the Ooubt by

Judge Kobebtson :

As writs of Yen. Ex. could not bave been legally issued for selling Johnson’s land unless it had been previously levied upon under fifia, the legal presumption, in the absence of any evidence to the contrary, must be that there had been such levy.

The appellants having -failed to produce or require the appellee to file all the executions which had been issued, the presumption of an execution lien arising from the undenied allegation and proof that writs of Ven. Ex. had been issued to sell the land, must be held to be-sufficient evidence of a legal levy on it which operated as a lien; and that lien is not shown to have been waived or lost. As the allegations and evidence sufficiently show that the appellee by advancing for Johnson about $700, discharged, as sheriff, all the execution debts except a small remnant still unpaid on the executions of the appellant he is entitled to subrogation to the lien of the creditors whose debts he thus satisfied.

The land was sold for the appellant’s legally subject to that lien; and, being sold for more than was due and for only a small portion of it’s value, the appellee, as substituted lien holder, had a right to have the sale set aside.

We perceive no essential error in the decree vacating the sale, nor in any other respect.

Wherefore, the judgment is affirmed.

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2 Ky. Op. 142, 1868 Ky. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-shackelford-kyctapp-1868.