
    Daviess vs. Myers.
    APPEAL PROM LOUISVILLE CHANCERY COURT.
    Chasoer-sv
    Case 38.
    January 21.
    1. Where an execution lias been levied, a stay of proceedings under it does not operate a release of the levy, but it still exists, anda sale may thereafter be made; not so •where the execution after levy is returned stayed by the plaintiff. (4 Bibb, 338; 8 B. Monroe, 411.)
    2. A-tenant for life may purchase at a sale under execution the interest of the reversioner in slaves, but if the debt under which the sale is made, be a legal charge upon the reversionary interest, and an equitable charge upon the life estate, the interest of the reversioner alono can be sold. In such case, if the tenantfor life purchase, he is held to have purchased for the benefit of the reversioner, as well as himself. (4 Monroe, 297; 5 Dana, 446.)
    3. Where a tenant for life purchases in an incumbrance upon the estate, the law regards such purchase as made for the joint benefit of himself and the reversioner, and the reversioner is bound to contribute his proportion of the price, and for such contribution-, has a lien upon the estate.
   Judge Simpson

delivered the opinion of the court.

Case stated.

1. Where an execution has been levied, a stay of the proceedings under it does not operate á release of the levy, but it still exists, and sale may thereafter be made; not so ■«'here the execution after levy is returned Stayed by the plaintiff. (4 Bibb, 338; 8 É. Monroe ,4íí.)

The slaves in contest in this case belonged to the estate of J. H. Daviess, deceased. They were assigned to his widow as part of her dower in her deceased husband’s estate. A judgment having been subsequently recovered against Rowan, the executor of J. H. Daviess, an execution that issued thereon' was’ levied upon the reversionary interest of the slaves in the possession of the dowress, which was sold’ under the execution, and purchased for her benefit.' 'She then claimed the slaves as her own absolute property, and at her death devised them to Mrs. Jane Taylor.

A controversy exists between the owner of the reversionary interest in the slaves, and the devisee of the dowress, in relation to the title to them.- Jn an action of detinue, brought for them by the reversioner, it was decided that his interest passed by the execution sale, and that the legal title to the slaves was in the devisee. (Myers v. Daviess, 10 B. Monroe, 394.)

He then instituted this suit in chancery, in which he attempts to impeach the sheriff’s sale ; but to sus-1 tain his claim to the slaves, relies mainly upon the ground that the purchase made by the dowress' should, in equity, be treated as a purchase for their joint benefit, inasmuch as the debt for which the judgment had been obtained, and1 to satisfy which the slaves were sold, was a charge not merely on the reversionary interest, but upon the whole estate in the slaves.

' The objection made to the sheriff’s sale, upon the’ ground that the proceedings under the execution had been stayed, and the sale was made after the return day thereof, cannot be sustained. The execution-was not returned stayed by the order of the plaintiff, but the proceedings under it were stayed, and the execution was retained by the officer. The levy of course still existed, and when the plaintiff directed thé sale to be made, the sheriff had full power to make it. In the cases referred to, (4 Bibb, 338 ; 8 B. Mon., 411,) where it was held that the levy had been released,' She executions were returned stayed by the plaintiff. Here the proceedings under the execution merely were stayed, not the execution itself, and as' the sheriff did not returfi the execution, it is evident'that the levy was not intended to be released. But this question was necessarily involved in the suit ht law, in determining the validity of the sale, and must be regarded as a matter that has been settled and adjudged between these parties.

2. Á tenant for life lbay purchase at a salé under execution the interest of the reversioner iri slaves,, but if the debt under which the sale is made, hé a legal charge upon the reversionary interest, and an e-q'uitable charge upon the life estate, the interest of the reversioner alone can be sold. In such ease, if the tenant for life purchase, hé is held to have purchased for the benefit 6f the reversioner as well as himself. (4 Monroe, 297; 5 Dana, 446.)

We have not been able to procure any foundation for the charge that the sale was fraudulent, so thát tlie result of this controversy must depend solely upon the question, whether in equity the purchase should be considered as having been made for the joint benefit. of the life estate and the reversion', or whether thé dowress under the circumstances had a right to purchase the reversionary interest and hold it for her 6wn benefit.

A tenant for life mfay undoubtedly purchase the interest in reversion and thereby acquire an absolute right to the property ; and if in this case the reversionary interest had been sold for a debt, due by the reversioner, no question could nave arisen in’ regard to the effect of the purchase. But the debt for which the interest of the reversioner was sold, was a charge upon the life estate, as well as upon the reversion. -The only difference between them was that it was an equitable charge upon the life estate, and a legal charge upon the reversion. The latter could be sold urider execution, the former could not, but had to be subjected by a suit in chancery; both interests however were equally liable for the payment of the debt; hnd a's between the parties themselves, neither hád a right to throw the whole burthen upon the other. According to well settled equitable principles a purchase -by either under such circumstances enured to the benefit of both’. The established doctrine is, that a .tenant for life in possession, in' the purchasé of an incumbrance upon the estate, is regarded ás having made the purchase for the joint benefit of himself and the remainder-man or reversioner, and c&ntfothold it for his own exclusive benefit. (4 Mon. 297 ; 5 Dana, 446.)

3. Where a tenant for life purchases in an i neumbrance upon the estate, the law regards such purchase as made for the joint benefit of himself and the reversioner, and the reversioner is bound tb contribute his proportion of the price, and for such contribution, has a Jieu upon the estate.

The slaves were liable for the payment of this debt,which was a demand against the estate of J. H. Daviess, deceased. A life estate in slaves is frequently of more value than the interest in reversion. The interest of the dowress may have been liable to be affected by the charge, to as great an- extent as that of the reversioner. The charge, it is true, had- assumed a character which, so far as the creditor- was concerned, made it devolve in the first instance upon the reversionary interest, but that did not change the relative rights of the owners of the estate, or give to the dowress in equity any advantage over the reversioner. The reversionary interest was sold and purchased by the tenant for life,- at probably one-fifth part of the value of the slaves, and this was done to remove an incumbrance, which it was her duty to have aided in discharging. Under these circumstances equity requires that the purchase made by her should be considered as having been made for the joint benefit of the parties,- and that the reversion-er should be bound to contribute bis ratable proportion of the money which was paid by her, and thereby be entitled to the reversionary interest in the slaves, the title to which was held in trust for him,- and which in equity he has a right to subject to the liability that devolves upon him, to-contribute his due proportion of the purchase money.

It appears that some of the slaves were sold by the dowress and her husband after she had purchased at the sheriff’s sale, and that from these sales a larger sum of money was probably realized- than had been-applied by her to-the payment of the debt. But as the amount of these sales does not certainly appear;it may become necessary to ascertain it upon the return of the cause to the court below-, if the devisee of the tenant for life should require it- to be done.

Morehead 4* Brown, for appellant; Ballard, and Fry 4- Page, for appellee.

Wherefore the decree is reversed,' and cause re■tnanded with directions to render a decree vesting the title of the slaves in contest in the complainant, and enjoining the defendant from proceeding at law for restitution. If, however, the contribution which the complainant was bound to make on account of the purchase at the sheriff’s sale, has not been realized from the sales made during the lifetime of the dowress, the balance must be ascertained and decreed against him, and its payment enforced by retaining a lien upon the slaves for the purpose.  