Park v. McReynolds

64 S.W. 517, 111 Ky. 651, 1901 Ky. LEXIS 239

• Court: Court of Appeals of Kentucky
• Decided: October 2, 1901
• Status: Published

Opinion

Opinion of the court by

JUDGE GUFPY

Reversing.

The plaintiff, A. McReynolds, instituted this 'action in the Graves circuit court'for the purpose of enjoining the sale of a certain parcel of'land in said county, being the E. y2 of the N. W. 14 of section 3, township 5, range 1 E., being eighty acres. It is substantially alleged in the petition: That plaintiff bought same from T. J. Wallace June 6, 1899, and that on March 18, 1895, the defendant D. G. Park, having a judgment against said Wallace, procured an execution to be issued for the sum of $140.25, with interest from 6th of March, 1895, and $11.40 easts, which was directed to the sheriff of Graves county to execute, and same commanded the sheriff to make s'aid1 sums.out of the estate of said Wallace, who was then the owner of said land, and the execution was on March 18, 1895, by the sheriff of Graves county, levied on said land, and due return made thereof. That on April 15, 1895, and before said execution expired, the plaintiff therein, Park, made and signed an indorsement on said execution,, in words and figures as follows, to-wit: The sheriff will return this execution to the office whence it issued without sale, and without releasing the levy. April 15, 1895. D. G. Park.” It is further alleged that same was returned to said office by the sheriff without making sale, as per directions; that nothing was ever done by the plaintiff in said execution to perfect said levy, or to sell said land thereunder, until August 4, 1899, when Park procured the clerk to issue a venditioni exponas directed to the sheriff ■of Graves county, commanding him to sell said land under and by virtue of said levy, and same was placed1 in the hands of defendant, Douthitt, who is now sheriff of Graves county, to execute. The petition then shows' that the land was advertised for sale, and that a sale would be made unless prevented. And it is. further stated that plaintiff had paid for said land, and- when he purchased same he did not know of said levy on same, of March 18, 1895, nor did he ever know of it; and that he is an innocent Iona fide purchaser of same, which purchase was made by him before D. G. Park attempted to sell same by procuring to issue said writ of venditioni exponas; that the long delay from March 18,1895, till August 4,1899, was and is an abandonment of said levy, and can not now be enforced as against this plaintiff. A perpetual injunction was prayed for, as well as that his .title be quieted. The petition herein wras filed August 30, 1899, and an injunction awarded pending the litigation. The defendant Park, in his answer, alleged in substance that the venditioni ex-ponas was directed to W. S. Cook, as sheriff, who made the levy and advertised the sale by the defendant’s directions,. and Sheriff Doutliitt did not proceed thereunder; that plaintiff, McReynolds, did have notice of said execution lien; that on the 5th day of October, 1897, he filed in the clerk’s office of the Graves county court, with the clerk, thereof, written notice of his execution levy and lien acquired thereby, and caused same to- be recorded in said office, which the clerk did on January 20, 1898, in which notice defendant set out in full said process, and the style and number of the case in the Graves circuit court in which the judgment was rendered on which the process isued, copy of which notice is filed as a part hereof. Defendant further denied that by such delay or indulgence alleged, or in any other manner, he had abandoned his levy on the land; denied that plaintiff was an innocent or tona fide purchaser of the land, or that he had no notice of defendant’s lien; that he was proceeding under his regular process to sell as he had a right to proceed.. Plaintiff filed a general demurrer to the answer of defendant Park, which was sustained by the court with exceptions. Thereupon defendant' Park filed an amended answer, in which it is charged that plaintiff had' actual no notice of defendant’s lien; that he was proceeding underlie purchased the land, and made his purchase with such notice; that he really purchased for other parties who furnished him the money at the time, with actual notice of defendant’s lien and execution; and he denies that plaintiff was a purchaser in good faith, without notice of his. •claim; Plaintiff’s demurrer to the answer and amended ed answer was sustained by the court, to which defendant excepted, and thereupon defendant filed another amended answer, which averred that plaintiff did not pay the sum of purchase money of $350 recited in the deed, nor did he purchase in good faith. Said Wallace knew defendant had not abandoned his levy or lien thereunder, and made the conveyance with the fraudulent intent to cheat, hinder, and delay the defendant in the collection of his debt, and plaintiff, McReynolds, and those for whom he purchased, knew of such intent, and made the fraudulent arrangement to defeat defendant. This answer seems to have been died December 30, 1899. The reply of plaintiff to the answer and amendments on file is a denial of the averments that he had actual notice of defendant’s lien, or that he made same with any such notice, or that he purchased the same for other parties, or that he had any knowledge at the time that Wallace sold him the land with any fraudulent intent to cheat or delay Park in the collection of his debt, or that he made the sale for any such purpose, or that he entered into any such arrangement with any fraudulent intent. At the succeeding April term of the court, on defendant’s motion, a rule was awarded against plaintiff to verify his reply, which it seems that he did on the 12th of April, 1900, and on the next day, over the' objection of defendant Park,1 the cause was submitted, and a judgment rendered in plaintiff’s favor adjudging, in effect, that the levy of the execution aforesaid had been abandoned by defendant Park, and that plaintiff was an innocent purchaser of same, and became such after said levy and before the issuing of the venditioni exponas, nnd adjudged that the defendants be perpetually enjoined from any further proceedings under said writ, or from attempting- to enforce said levy of said execution on said land or any of it, and that plaintiff’s title to said land be quieted; to all of which the appellants excepted, 'and prayed an appeal to the court of appeals, which was granted.

Appellants objected to the submission upon the ground that the case did not stand for trial at that time because by the provisions of the Code of Practice the party in default should not be entitled to a trial Unless the pleadings had been completed sixty days before the commencement of the term of court, and that, inasmuch as plaintiff had failed1 to verify his reply until after the commencement of the term, the pleadings were not completed, and only verified by him in obedience to a rule of court, or as the result of defendant’s motion for a rule. If defendant had filed a rejoinder to the reply, or had by any act indicated an intention to waive the verification of the reply, he would not have been entitled to a continuance on account of the failure of the plaintiff to verify the reply sixty days before court. But we think that the proper construction of the Code is that a pleading which, under the law, should be verified, can not be considered filed until it is verified; or, if it be considered filed at all, it can not be taken as a complete pleading until it is verified or the verification waived by some act of the adverse party. It results, therefore, that the court erred in submitting the case for trial at the April term aforesaid.

It is earnestly insisted for appellee that the long delay upon the part of the appellants in enforcing the sale under the execution was in law and in fact an abandonment of the same, and .should be so treated. It is also insisted for appellee that section 2, c. 11, p. 15, Acts 1896, has no application to executions or.. attachments issued prior to the passage of the act aforesaid; hence it is argued’ that the filing of the notice required by said act is of no effect whatever. If appellant had taken no steps indicating his intention to hold the levy in full force; and to enforce the same, and protect the lien acquired thereunder, from the time of the levy up to the purchase by appellee, there would. have been much force in' the contention of appellee that the levy should be considered as abandoned, and his title adjudged perfect. It will be seen from the record that on the 5th of October, 1897, appellants filed a notice required by section 2 of the act of the Legislature before referred to, and, if the law applied to the executions or liens acquired or issued before the passage of the act, this filing must be taken as constructive notice to appellee of appellants’ lien upon the land; and it will be seen that the act in question was approved March 17, 1896 (Kentucky Statutes, section 2358a, sub-sec. 2), and as a matter of law went into effect ninety days after the adjournment of the Legislature. The second section reads as follows: “No attachment or execution hereafter issued, nor any levy of sale under either, shall in any manner affect the right, title to, or interest of a subsequent purchaser, lessee, or incumbrancer without notice thereof of any real estate or any interest therein upon which such attachment or execution may be or may have .been, levied, except from the time there shall be filed in the office aforesaid a memorandum, showing the number and style of the action in which said attachment or execution issued, the court from which it isisued, the number, if any, of such attachment or execution, ‘ tbe> date thereof, and the name of the persons in whose favor and against whom respectively it issued. Such notice may be filed by any party in interest.” It seems to us that the ■act in question applied to all executions and attachments and suits and judgments, whether issued or instituted before or after the enactment. If Park had failed to comply with said statute, we think he would have lost his lien; and, having complied with it, we are of opinion that the same was constructive notice to the appellee,’ and that he purchased at his peril if he did so without an actual examination of the records. We do not think that the delay in enforcing a sale from the levy to the time of filing the notice required was sufficient to nullify the levy. Nor do we think that the delay to enforce a sale after the filing of the notice aforesaid was sufficient to destroy the lien theretofore acquired. It results from the foregoing that the court erred in sustaining appellee’s -demurrer to the answer and amenduien-t thereto.

The appellee moved to dismiss the appeal for want of jurisdiction in this court because the principad of the debt sought to be collected wa-s less than $200. That motion has already been overruled by this court, and properly so, because the title to the land is the read matter or thing in controversy. For the reasons indicated, the judgment appealed from is reversed, and cause remanded, with direction to overrule the demur-rer, and for proceedings consistent herewith.

Petition for rehearing by appellee overruled: