Buckler v. Reese & Bro.

JUDGE HAZELRIGG delivered the opinion of tiie court: This was a suit by the appellant against the appellees for damages growing out of an alleged wrongful issual of certain executions against the appellant, under which his lands were sold. The issual is alleged to have been wrongful because the appellant was not given credit on the bonds on which the executions were issued for certain sums claimed to have been paid by him to the appellees, who were the obligees in the [339] bonds and the plaintiffs in the executions. We are of opinion that the appellant has not shown himself entitled to these alleged credits. Doubtless the arrangement by which he was to get the benefit of them would have been carried out but for the death of his father. When the administratrix of the latter, however, repudiated the arrangement, the appellees were relieved of their agreement to enter the credits. Moreover, the appellant was not divested of title by the attempted sale. He had been adjudged of unsound mind, and a committee was in charge of his person and his estate at the time the executions were issued and the sale made. At the common law this might have been done and the purchaser given a good title. Such were the conclusions reached by this court before our statutes were enacted empowering courts of chancery to sell the lands of such persons for debt, and to provide for their maintenance. (Allison v. Taylor, &c., 6 Dana, 87; Berry v. Rogers, 2 B. M., 308; Shirley v. Taylor’s heirs, 5 B. M., 99.) But in McNees, &c., v. Thompson, &c., 5 Bush, 686, where the defendant in the execution, sane at the time the judgment was rendered, became insane afterwards and before an execution issued, it was held that an action to revive against the committee was proper because the creditor, though entitled to have his debt satisfied, could not have it done by the issual of an execution against the debtor alone, the statutes then in force on the subject being cited. (Section 2, chapter 481, Stanton’s Revised Statutes.) [340] It is true, as contended, that in that case no execution in fact was issued; but it is clear, if such a remedy had been held to be open to the creditor, he would have been forced to adopt it. His resort to an action against the committee was upheld because he had no remedy by execution. Our present statutes are similar to- the provisions of the Revised Statutes on the subject, in question. (Section 2150, Kentucky Statutes; section 489, Civil Code.) The issual of these executions is, therefore, to be held as a nullity and the sale as void. These acts were consequently harmless in themselves to the appellant; and while he might have been damaged by the wrongful seizure of his land or its use and occupancy, and could have instituted an action on this account against the plaintiffs in the executions and the purchasers as co-trespassers, he has not done so, but proceeds on the erroneous theory that he was divested of title to his land by this sale. He probably did not institute a different suit because, after a restoration to his proper mind, he confirmed the sale to the purchaser, the co-trespasser with appellees, for a valuable consideration, and can assert no further claim for the damages indicated. The judgment dismissing his action must be affirmed.