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Cumberland Valley Bank's Assignee v. Slusher

or to make the endorsement which he did; or that the return was true; or that the execution was satisfied; or that the sale was good; or that the issue of the execution sought to be enjoined was wrongful, or that the plaintiff would suffer any injury thereby. In the second paragraph Lock states that the attempted sale was void and passed no title because there was no levy of the execution, and that it would not have passed title if any one had bid; that there was no bid, no one present acting for the bank when the property was sold; that he had been informed by the deputy sheriff that he was proposing to sell under said execution two pieces of property which he had advertised for sale, one being lot 19 and the other the house and lot where J. F. Neal then lived, and that he authorized the deputy sheriff to bid the bank's debt interest and cost on the two lots; that if the sheriff cried for the bank any bid on lot 19 separately and by itself, it was done entirely without authority on his part or on the part of the bank; that afterwards, in October, 1894, before a year had expired, and as soon as he or his attorney learned of such return being made on the execution, and while Slusher was in possession of the property, which he still held, the defendant moved in open court that the execution, sale and return be quashed, and the court entered an order in accordance with said motion. The answer concludes with a prayer that the petition be dismissed and the injunction dissolved; and if the court should hold that the return on the execution had not been legally quashed, that the same be now done on the facts presented in the answer, and a new execution awarded on the sale bond.

A demurrer having been sustained to the answer an

Cumberland Valley Bank's Assignee v. Slusher.

amended answered was filed, in which it was averred that the endorsement of the deputy sheriff on the execution "was a mistake, or was made by fraud or mistake on the part of the said W. H. Ingram, and defendant does not know which." He further denies that Ingram, or any one, ever levied the execution on the lot, or that he (Lock) was the highest bidder, or bid at all at said sale.

The demurrer, in our opinion, was correctly sustained to the paragraphs of the original answer. The first paragraph was a mere traverse of the return of the sheriff; the second paragraph was an affirmative averment of facts tending to show that the return was untrue, and an averment that the court, upon his motion made in open court, had quashed the return and awarded him another execution on the sale bond.

By section 3760 of the Kentucky Statutes it is provided: "Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement in writing, either in the form of a certificate, return or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer.”

The first question is whether the officer's return before quoted recites a levy upon the lot. It states that, "after duly advertising the property levied on under this execution, to-wit, lot 19, in block 13, Pineville, Ky.," it was offered for sale. This, we think, is a sufficient statement that the levy had been made. To constitute a valid levy on land the return need not be written out and signed when the levy is made (Demit v. Ringo, 5 Ky. Law Rep., 320); and in this

Cumberland Valley Bank's Assignee v. Slusher.

case we think it was sufficient to recite the levy upon the land, describing the lot, after the sale was made. It appears by the evidence that the execution defendant consented to the levy upon this lot, and was informed by the officer that it had been made. This, however, is not necessary to the decision of the question under consideration.

This being so, under the statute just referred to the traverse in the first paragraph of the answer of the facts stated in the return and the affirmative statement of facts constituting a denial contained in the second paragraph do not constitute a valid defense, there being no allegation of fraud in the patry benefited thereby, or mistake on the part of the of ficer.

It is urged that this court, in Commonwealth v. Jackson, 10 Bush, 424, by implication decided that the return of an officer could be impeached by testimony of the clearest and most convincing character. The facts upon which that case was decided occurred prior to the adoption of the General Statutes, in which the provision under consideration appears to have first been enacted. While not necessary to the decision of this case, it may be mentioned that the testimony in this case falls very short of the standard indicated as to the fact of the levy. Nor was a sufficient defense stated in the concluding part of the second paragraph, for it contained no averment that the appellee was before the court or had notice of the motion to quash. In fact the averment by implication admits that there was no notice given to, or waived by, the execution defendant; and the order of quashal without notice is void, and so conceded in appellant's brief.

The amended answer was apparently intended to conform

Cumberland Valley Bank's Assignee v. Slusher

to the requirements of section 3760, Kentucky Statutes. It pleads in the alternative that the return "was made by fraud or mistake on the part of the said W. H. Ingram, and defendant does not know which." Pleading in the alternative is permissible under subsection 4, section 113 of the Code; but in such case each alternative pleaded should be a complete and sufficient cause of action or ground of defense. This rule was laid down in L. & N. R. R. Co. v. Coppage, 7 Ky. Law Rep., 527, in which the syllabus states: "When a complaint is stated in the alternative form, and a cause of action is presented by one statement, but not by the other, it seems that the petition is not to be regarded as stating any cause of action, as the facts may be as alleged in that part of the petition which contains the insufficient allegation."

Tested by this rule, which we regard as a sound and reasonable one, the allegations of the amended answer are insufficient under section 3760; for while the one alternative mistake on the part of the officer in making the return would authorize the facts stated in the return to be called in question in this suit, fraud on the part of the officer alone, in which the party to be benefited thereby took no part, does not authorize the impeachment of the return. We conclude, therefore, that under section 3760 the answer as amended is insufficient.

But it is earnestly insisted that it is sufficient under section 1710, providing that "sales made under execution by fraud, covin or collusion may be set aside on the motion of any person aggrieved, or by petition in equity." After a careful consideration of this section we have reached the conclusion

Winston, Commissioner, etc. v. Stone, Auditor

that it does not apply to the averments in this answer at all. There is no averment in the answer that any sale was made under execution by fraud, covin or collusion. On the contrary, the claim is, and the evidence introduced on behalf of appellant is to that point, that there was no sale, but that the return of the officer that a sale had been made was false. The averments were not made under this statute, nor do they furnish ground for relief thereunder. It appears from the evidence that the house on the lot in question was burned some eight months after the day of sale, which may account for the fact that it is the execution plaintiff and not the execution defendant who is objecting to the sale.

We do not mean to decide that a person falsely reported as purchaser at an execution sale is without relief. Upon proper averments such a return might be quashed; and, in any event, there is a remedy upon the bond of the officer for a false return.

For the reasons given the judgment is affirmed.

CASE 68-AGREED CASE-DECEMBER 11.

Winston, Commissioner, Etc. v. Stone, Auditor.

APPEAL FROM FRANKLIN CIRCUIT COURT.

1. PUBLIC OFFicers—StatuTORY CONSTRUCTION. The provisions of sections 1761-1764 with reference to certain officers and their deputies in counties of this State having a population of 75,000 or over, and requiring monthly reports by them to the auditor of public accounts, apply to the commissioner and receiver of Jefferson county, that being the only county in the State having such population.

102 423 120 800

102 423 138 662

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