
    Case 48 — PETITION ORDINARY
    Jan. 6.
    Buckler v. Reese & Bro.
    APPEAL PROM MASON CIRCUIT COURT.
    1.Insane Person, Execution against, and Sale thereunder — Damages.—The issual of an execution against a person of unsound mind is a nullity, and a sale thereunder is void; that being true, such acts are, in themselves, harmless to such person, 'and he can not recover damages for the wrongful issuance of the execution, or the sale thereunder.
    HANSON KENNEDY por appellant.
    1. When a judgment is valid, and the defendant in the judgment subsequently becomes of unsound mind, and there is nothing in the record to show this fact, and execution issues on the judgment and a sale of land is made thereunder, the purchaser obtains a good title. (Allison v. Taylor, 6 Dana, 87; Shirley v. Taylor’s Heirs, 5 B. M., 99; Vanfleet’s Collateral Attack, sec. 616.)
    2. Where a judicial record is fair on its face, it can not be shown collaterally that any party was insane at the time the proceeding was commenced or judgment rendered, because that would contradict the record. (Vanfleet’s Collateral Attack, sec. 616.)
    3. One is not civilly dead when he becomes insane. (Chitty’s Blackstone, Vol. 1, pp. 95-6; Bouvier’s Law Diet., Vol. 2, under definition of “Right;” Leake’s Digest of the Law of Contracts, p. 563; Rankin’s Heirs v. Rankin’s Ex’ors. 6 Mon., 531.)
    4. If one has an execution wrongfully issued for too large an amount, he is liable for the damages arising therefrom, although he was entitled to have the execution issued for a smaller sum.
    
      5. Deming was not a co-trespasser with, appellees, and the acceptance by appellant o-f the $350 from him is not a bar to his right of action against appellees, because accord and satisfaction moving from a stranger is not good. (Stark v. Thompson, 3 Mon., 302.)
    WINFIELD BUCKLER on same side.
    1. The issual of the execution and all proceedings thereunder were irregular, but not void. (Freeman on Judgments, sec. 152 and authorities there cited.) (Allison v. Taylor, 6 Dana, 87; Civil Code, sec. 517.)
    2. The case of McNees v. Thompson, 5 Bush, 586, was a direct proceeding to have the committee of the lunatic brought before the court as a defendant in the judgment, which was properly done; But this is a collateral attack by the appellees of the judgment of the Robertson Chancery Court.
    S. If the sheriff can justify his acts under the execution then the purchaser acquires good title by the sale to him under it. (Yocum v. Froma, 14 Bush, 494; Graves v. Lillie, 7 Mon., 9; Ringgold v. Clark, 2 B. M., 127; Walker v. McKnight, 15 B. M., 374; Bishop v. Gaveger, 5 B. M., 360.)
    That the execution in this case would have been complete protection to the sheriff, see Banter v. Reynolds, 3 B. M., 80; Clay v. Sandifer, 12 B. M., 338; Bouvier’s Institutes, Vol. 3, p. 180.)
    4. Errors and irregularities must be corrected by a direct proceeding, and can not be made available by way of collateral attack on the purchaser’s title. (Freeman on Void Judicial Sales, sec. 21, and authorities there cited.)
    5. It is not claimed in the pleadings that Deming and the appellees were co-trespassers, and it is not in fact true. Therefore no settlement made with Deming could release the appellees from liability. When a wrong is committed in which several persons join without concert, the release of. one is not tbe release of all; they are not, strictly speaking, joint trespassers. (Taggart on Torts^, 345 and 212; Bennett v. Fifield, 13 R. I., 139; Chipman v. Palmer, 77 N. Y., 51; Sammons v. Enerson, 124 N. Y., 319.)
    6. The vendee of property, real or personal, let in possession, under his purchase, can not retain the possession and deny the title of his vendor. (Lyne v. Bank of Ky., 5 J. J. M., 570; Bigelow on Estoppel, p. 547.)
    THOS. H. HINES or counsel on same side.
    
      E. L. WORTHINGTON for appellees.
    1. There is no evidence that 'appellees did the wrong appellant complains of; they did not direct the clerk to issue the execution, they did not direct, the sheriff to levy it on appellant’s land, nor did they direct him to sell the land under it.
    2. Deming is the one who bought the land at the sale and deprived appellant of it if any one did; and appellant’s settlement with him is a bar to his recovery from appellees on account of the sale.
    6. There is no evidence to sustain appellant’s allegation that he is the owner of the judgment in favor of Robert Buckler.
    4. After one has been judicially found to be a lunatic, and a committee appointed for him, he can not be divested of title to his land by a sale of it under execution; that can only be effected by a decree of the chancellor. (McNees v. Thompson, 5 Bush, 686.)
    The cause of the seeming conflict between that case and that of Allison v. Taylor, 6 Dana, 87, is the different statutes in force at the time the opinions were, respectively, rendered.
    L. W. ROBERTSON on same sede.
    1. Appellant had been, duly adjudged of unsound mind before the sale, and was therefore not divested of title or possession thereby, and sustained no injury by reason of same. (McNees v. Thompson, 5 Bush, 686.)
    2. Appellant, after having been restored to his proper mind, ratified and confirmed the sale to Deming and consented that a deed might be made to him by the court, and accepted from Deming $350 in settlement of damages growing out of the execution and sale. He is therefore estopped to assert the same a second time against these appellees.
   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 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.)

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.  