New Jersey Mutual Insurance v. Glore

6 Ky. Op. 523, 1873 Ky. LEXIS 256

• Court: Court of Appeals of Kentucky
• Decided: February 27, 1873
• Status: Published

Opinion

Opinion by

Judge Lindsay:

• According to appellee’s own showing, O’Brien, the pawnbroker, was in possession of the watch and held a lien on it (under an express contract) to secure the repayment of forty dollars loaned money when the constable levied on and sold the same by virtue of appellant’s execution against said O’Brien.

The levy was upon the watch itself, and not upon O’Brien’s equity. The watch itself was sold and purchased by appellant. The price thereof, thirty-one dollars, was entered as a credit on the execution, and to that extent the judgment against 0'’Brien was satisfied.

He has taken no steps to have the sale quashed on account of his interest in the watch not being subject to levy and sale under execution, but seemsi inclined to accept the credit resulting from the sale, and to assist appellee in his attempt to recover the full value of the watch.

As a matter of law, the fight of action for the recovery of the watch is in O’Brien, who has a special interest in the property,' and also the right of possession under his contract with Glore.

If he abandons this right to Glore, and at the same time takes no steps to set aside the execution sale, he must be held thereby to assent to the action of the constable. Such being the case; appellant is invested with his rights, at least to the extent that its judgment against him has been satisfied by the sale.

Seymore■ & Abbott, for appellants. Henry, for appellee.

Glore could not have recovered in. an action against O’Brien without paying or offering to pay the loaned money. Neither can he recover against appellant’ without paying or offering to pay the amount bid for the watch at the constable’s sale, said amount being less than the debt owing by him to O’Brien.

The instructions given by the court below are wholly inconsistent with the view of the law. Its judgment must'therefore be reversed. The cause is remanded for a new trial upon principles consistent with this opinion.