Stark v. Mitchel

9 Ky. 15

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1819
• Status: Published

Opinion

The Chief Justice

delivered the opinion of the court.

*

This is an appeal from a judgment quashing the sale and

On a motion to quash a sale under an execution against two, it is error to quash on the application of one only. Bibb for appellant.

conveyance of land which had been seized and sold by the sheriff in virtue of an execution. It appears that the execution issued against the estate of Mitchel and Ledgerwood’s heirs, and that the land was taken and sold as the property of Ledgerwood’s heirs. But the notice was given, and the motion to quash was made, by Mitchel, and in his name only. This was clearly irregular. Ledgerwood’s heirs not only being defendants in the execution, but the land having been taken and sold as their property, they were most directly interested, and ought to have been parties to the motion.

The circuit court erred, therefore, in sustaining the motion in the name of Mitchel only.

The judgment quashing the sale, must be reversed with cost, and the cause remanded, that the motion may be dismissed with costs.

Absent, Judge Rowan.