CHAPTER 425 Provisional Remedies

General Provisions

425.001. Exemption of surety on specified bonds.

No surety shall be required on any bond made for the purpose of the issuance of a temporary restraining order, writ of possession, or order of attachment pursuant to this chapter by any domestic bank, savings and loan institution, or institution which is a member of the Farm Credit System, as defined by 12 U.S.C. Section 2002.

History. Enact. Acts 1982, ch. 135, § 1, effective July 15, 1982.

NOTES TO DECISIONS

Cited:

Owens v. First Commonwealth Bank, 706 S.W.2d 414, 1985 Ky. App. LEXIS 707 (Ky. Ct. App. 1985).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Bond for Attachment — No Surety, Form 150.11.

Caldwell’s Kentucky Form Book, 5th Ed., Order Granting Motion for Temporary Injunction, 156.10.

Caldwell’s Kentucky Form Book, 5th Ed., Order Transferring Possession (Another Form), Form 152.111.

Caldwell’s Kentucky Form Book, 5th Ed., Plaintiff’s Bond — No Surety, Form 152.15.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Principal and Surety, § 201.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Restraining Order, 156.03.

Caldwell’s Kentucky Form Book, 5th Ed., Temporary Restraining Order, Form 152.12.

Petrilli, Kentucky Family Law, Court Procedure, § 23.34.

Writ of Possession

425.005. Procedure for arrest of defendant in civil action. [Repealed.]

Compiler’s Notes.

This section (C.C. 152: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.006. Definitions.

As used in this chapter:

  1. The term “judicial officer” means any judge or any commissioner or other officer appointed by the trial court to perform the duties required by this chapter.
  2. The term “probable validity of the claim” means a claim in which it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.
  3. The term “dwelling” as used in this chapter means a mobile home, boat or similar property used as a place of residence.

History. Enact. Acts 1976, ch. 91, § 1.

NOTES TO DECISIONS

1. Real Property.

The intention of the Legislature in enacting former KRS 425.311 (now repealed) was not to impose the impossible duty of obtaining a writ of possession on real property prior to securing an attachment. Leonard v. Farmers & Traders Bank, 605 S.W.2d 770, 1980 Ky. App. LEXIS 355 (Ky. Ct. App. 1980).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

425.010. Issuance of order of arrest — Contents of affidavit. [Repealed.]

Compiler’s Notes.

This section (C.C. 153: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

Research References and Practice Aids

Kentucky Law Journal.

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

425.011. Motion for writ of possession — Required allegations.

  1. Upon filing of the complaint or at any time prior to judgment, in an action to recover the possession of specific personal property, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written motion for the writ with the court in which the action is brought.
  2. The motion shall be executed under oath and shall include all of the following:
    1. A showing of the basis of the plaintiff’s claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff’s claim is a written instrument, a copy of the instrument shall be attached.
    2. A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff the reason for the detention.
    3. A particular description of the property and a statement of its value. A description of property sufficient under KRS 355.9-108 shall meet the requirement of this section. The statement of value may be as to the worth of the property as a whole.
    4. A statement, according to the best knowledge, information and belief of the plaintiff, of the location of the property and if the property, or some part of it, is within a private place which may have to be entered to take possession a showing that there is probable cause to believe that such property is located there. Although such showing may be based on information and belief the judicial officer at the hearing herein provided must be presented with facts sufficient to show that the information and the informant are credible and reliable.
    5. A statement that the property has not been taken for a tax assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or if so seized, that it is by statute exempt from such seizure.
  3. The requirements of subsection (2) of this section may be satisfied by one (1) or more affidavits filed with the application.

History. Enact. Acts 1976, ch. 91, § 2; 1984, ch. 158, § 1, effective July 13, 1984; 2000, ch. 408, § 185, effective July 1, 2001.

NOTES TO DECISIONS

1. Real Property.

The intention of the Legislature in enacting former KRS 425.311 (repealed) was not to impose the impossible duty of obtaining a writ of possession on real property prior to securing an attachment. Leonard v. Farmers & Traders Bank, 605 S.W.2d 770, 1980 Ky. App. LEXIS 355 (Ky. Ct. App. 1980).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Rules of Civil and Criminal Procedure, Vol. 42, No. 1, Jan. 1978, Ky. Bench & Bar 22.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Writ of Possession, Form 152.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession, Form 152.03.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession (Another Form), Form 152.04.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Order Transferring Possession, Form 152.05.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Temporary Restraining Order, Form 152.06.

425.012. Writ of possession.

  1. Before a writ of possession shall be issued by the clerk, the person seeking the writ must first make a demand in writing at or after the time the suit is filed, by delivering such demand and a copy of the complaint, motion and summons to the defendant or by sending them to him by registered or certified mail, return receipt requested, to the last known place of residence, at least seven (7) and not more than sixty (60) days before such order is sought. The demand shall contain a statement in substance that the defendant has seven (7) days in which to petition the court for a hearing or in which to pay the amount claimed in the complaint in full, and that unless a hearing is set or the amount paid, a writ of possession will issue. The statement shall identify the court in which the suit has been filed, the grounds therefor, the date of the demand, the amount claimed, and the name and address of the plaintiff and his attorney. An affidavit of the plaintiff or his attorney evidencing compliance with this subsection shall be filed before a writ shall be issued.
  2. The writ of possession shall be issued by the clerk upon compliance with subsection (1) of this section unless the defendant has requested a hearing, in which case a hearing shall be conducted pursuant to KRS 425.031 .

History. Enact. Acts 1978, ch. 399, § 5, effective June 17, 1978; repealed and reenact., Acts 1980, ch. 188, § 296, effective July 15, 1980.

Compiler’s Notes.

This section was formerly compiled as KRS 425.312 .

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1. Jurisdiction.

Circuit court had jurisdiction to deny a motion to quash a writ of possession where the petition was filed by the dog breeder pursuant to Ky. Rev. Stat. Ann. § 425.051 , and thus, the Ky. Rev. Stat Ann. § 425.012(1) notice and time requirements did not need to be met. Pope v. Thompson, 519 S.W.3d 781, 2017 Ky. App. LEXIS 84 (Ky. Ct. App. 2017).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Compliance with KRS 425.012 , Form 152.13.

Caldwell’s Kentucky Form Book, 5th Ed., Notice and Demand, Form 152.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

425.015. Order not to issue until bond executed. [Repealed.]

Compiler’s Notes.

This section (C.C. 154: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.016. Issuance of writ. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 91, § 3) was repealed by Acts 1978, ch. 399, § 6, effective June 17, 1978.

425.020. Form and contents of order of arrest. [Repealed.]

Compiler’s Notes.

This section (C.C. 155: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.021. Service of pleadings on defendant. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 91, § 4; 1980, ch. 188, § 293, effective July 15, 1980) was repealed by Acts 1984, ch. 158, § 10, effective July 13, 1984.

425.025. Return day of order. [Repealed.]

Compiler’s Notes.

This section (C.C. 156: trans. and amend. Acts 1952, ch. 84, §§ 1, 7) was repealed by Acts 1976, ch. 91, § 45.

425.026. Writ of ne exeat abolished. [Repealed.]

Compiler’s Notes.

This section (C.C. 688: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.027. Notice of application and hearing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 91, § 5) was repealed by Acts 1978, ch. 399, § 6, effective June 17, 1978.

425.030. Execution of order. [Repealed.]

Compiler’s Notes.

This section (C.C. 157: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.031. Conduct of hearing.

Upon request of a defendant or intervening party, the judicial officer shall conduct a hearing at which each party shall be provided the opportunity to present witnesses on his behalf and to cross-examine adverse witnesses. The parties shall have the right to compel the attendance of witnesses by subpoena and to be represented at the hearing by counsel. The judicial officer shall make his determination upon the evidence adduced at the hearing.

History. Enact. Acts 1976, ch. 91, § 6; 1984, ch. 158, § 2, effective July 13, 1984.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Abuse of Legal Process, § 27.06.

425.035. Commitment of defendant to jail unless bailed — Discharge. [Repealed.]

Compiler’s Notes.

This section (C.C. 158: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.036. Issuance of writ of possession.

  1. At the hearing, the judicial officer shall issue a writ of possession if he finds both of the following:
    1. The plaintiff has established the probable validity of his claim to possession of the property; and
    2. The plaintiff has provided a bond as required by KRS 425.111 .
  2. No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that such property is located there.

History. Enact. Acts 1976, ch. 91, § 7.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Plaintiff’s Bond on Writ of Possession and Temporary Restraining Order, Form 152.16.

425.040. Deposit, custody and disposition of money in lieu of bail — Liability of sheriff. [Repealed.]

Compiler’s Notes.

This section (C.C. 159 to 162: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.041. Order transferring possession.

If a writ of possession is issued, the judicial officer may also issue an order directing the defendant to transfer possession of the property to the plaintiff.

History. Enact. Acts 1976, ch. 91, § 8.

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Transferring Possession, Form 152.10.

Caldwell’s Kentucky Form Book, 5th Ed., Order Transferring Possession (Another Form), Form 152.111.

Caldwell’s Kentucky Form Book, 5th Ed., Plaintiff’s Bond on Writ of Possession and Order Transferring Possession, Form 152.14.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Order Transferring Possession, Form 152.05.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Temporary Restraining Order, Form 152.06.

425.045. When bail may be given — Contents of bond — Discharge of defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 163: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.046. Requirements of writ of possession.

  1. The writ of possession shall meet all of the following requirements:
    1. The writ shall be directed to the sheriff;
    2. The writ shall describe the specific property to be seized in accordance with KRS 425.011(2)(c);
    3. The writ shall specify any private place that may be entered to take possession of the property or some part of it; and
    4. The writ shall direct the sheriff to levy on the property pursuant to KRS 425.091 if found and to retain it in his custody until released or sold pursuant to KRS 425.101 .
  2. The writ shall inform the defendant that he has the right to obtain redelivery of the property by filing a bond with one (1) or more sufficient sureties as prescribed by KRS 425.116 or that he has the right to except to the sureties upon the plaintiff’s bond, a copy of which shall be attached to the writ.
  3. The writ may at any time before judgment be directed to any county for the delivery of the property claimed.
  4. The writ shall inform the defendant of his right to seek an order from the court, under KRS 425.081 , to quash the writ and seek a release of the property seized.

History. Enact. Acts 1976, ch. 91, § 9; 1984, ch. 158, § 3, effective July 13, 1984.

Opinions of Attorney General.

The Legislature designed KRS 454.145 to enable a court, where the interest of justice and the orderly working of the court demand, to resort to the appointment of a special bailiff to serve a particular and specifically designated process in that particular case only, instead of the court’s having to resort to the application of KRS 454.140 or subdivision (1)(a) of this section; thus, where the court has, in its discretion as described above, appointed a special bailiff under KRS 454.145 to serve a writ of possession, that special bailiff then has the authority to so serve the writ of possession, as required under this chapter. OAG 84-366 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

425.050. Qualifications of bail. [Repealed.]

Compiler’s Notes.

This section (C.C. 164: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.051. Ex parte motion — Endorsement.

  1. The plaintiff may apply ex parte in writing to the court in which the action was brought for an endorsement on the writ directing the sheriff to seize the property at a private place not specified in the writ.
  2. The judicial officer shall make the endorsement if the plaintiff establishes by affidavit that there is probable cause to believe that the property or some part of it may be found at that place.

History. Enact. Acts 1976, ch. 91, § 10.

NOTES TO DECISIONS

1. Jurisdiction.

Circuit court had jurisdiction to deny a motion to quash a writ of possession where the petition was filed by the dog breeder pursuant to Ky. Rev. Stat. Ann. § 425.051 , and thus, the Ky. Rev. Stat Ann. § 425.012(1) notice and time requirements did not need to be met. Pope v. Thompson, 519 S.W.3d 781, 2017 Ky. App. LEXIS 84 (Ky. Ct. App. 2017).

425.055. Objections to sufficiency of bail. [Repealed.]

Compiler’s Notes.

This section (C.C. 165: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.056. Effect of failure of defendant to oppose writ or rebut evidence.

Neither the failure of the defendant to oppose the issuance of a writ of possession under this chapter nor his failure to rebut any evidence produced by the plaintiff in connection with proceedings under this chapter shall constitute a waiver of any defense to plaintiff’s claim in the action or any other action or have any effect on the right of the defendant to produce or exclude evidence at the trial of any such action.

History. Enact. Acts 1976, ch. 91, § 11.

425.060. Exoneration of officer from liability. [Repealed.]

Compiler’s Notes.

This section (C.C. 166: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.061. Effect of determinations of judicial officer.

The determinations of the judicial officer under this chapter shall have no effect on the determination of any issues in the action other than the issues relevant to proceedings under this chapter, nor shall they affect the rights of any party in any other action arising out of the same claim. The determinations of the judicial officer under this chapter shall not be given in evidence nor referred to in the trial of any such action.

History. Enact. Acts 1976, ch. 91, § 12.

425.065. Proceedings if bail adjudged insufficient. [Repealed.]

Compiler’s Notes.

This section (C.C. 167: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.066. Temporary restraining order — Preliminary injunction.

  1. At or after the time he files his motion for writ of possession, the plaintiff may apply for a temporary restraining order by setting forth in the motion a statement of grounds justifying the issuance of such order.
  2. The judicial officer may issue a temporary restraining order if he determines that plaintiff’s motion for writ of possession shows the probability that there is an immediate danger that the property claimed may become unavailable to levy by reason of being transferred, concealed, or removed or may become substantially impaired in value.
  3. If at the hearing on issuance of the writ of possession the judicial officer determines that the plaintiff is not entitled to a writ of possession, the judicial officer shall dissolve any temporary restraining order; otherwise, he may issue a preliminary injunction to remain in effect until the property claimed is seized pursuant to the writ of possession.

History. Enact. Acts 1976, ch. 91, § 13.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Injunctions, § 156.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Temporary Restraining Order, Form 152.06.

Caldwell’s Kentucky Form Book, 5th Ed., Temporary Restraining Order, Form 152.12.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Restraining Order, Form 253.49.

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit for Restraining Order, Form 253.50.

425.070. Execution against the person — Oath of insolvency. [Repealed.]

Compiler’s Notes.

This section (C.C. 168: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.071. Prohibitions by temporary restraining order.

In the discretion of the judicial officer, the temporary restraining order may prohibit the defendant from doing any of the following:

  1. Transferring any interest in the property by sale, pledge, or grant of security interest, or otherwise disposing of or encumbering, the property. If the property is farm products held for sale or lease or is inventory, the order may not prohibit the defendant from transferring the property in the ordinary course of business, but the order may impose appropriate restrictions on the disposition of the proceeds from such transfer.
  2. Concealing or otherwise removing the property in such a manner as to make it less available to seizure by the levying officer.
  3. Impairing the value of the property either by acts of destruction or by failure to care for the property in a reasonable manner.

History. Enact. Acts 1976, ch. 91, § 14.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Writ of Possession and Temporary Restraining Order, Form 152.06.

Caldwell’s Kentucky Form Book, 5th Ed., Temporary Restraining Order, Form 152.12.

425.075. Discharge of bail upon surrender of defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 169: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.076. Issuance of ex parte writ of possession.

  1. A judicial officer, except as otherwise provided by statute, shall not issue an ex parte writ of possession unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the writ were delayed until the matter could be heard on notice.
  2. The requirement of subsection (1) is satisfied if any of the following are known:
    1. A danger that the property sought to be attached would be concealed or placed beyond the process of the court or substantially impaired in value if issuance of the order were delayed until the matter could be heard on notice.
    2. The defendant gained possession of the property by wrongfully taking the property from the plaintiff. This provision shall not apply when the defendant has fraudulently appropriated property entrusted to him or obtained possession by false pretense or by embezzlement.
    3. The property is a credit card.
    4. Any other circumstances showing that great or irreparable injury would result to the plaintiff if issuance of the writ were delayed until the matter could be heard on notice.
  3. The plaintiff’s motion for the writ shall satisfy the requirements of KRS 425.011 and in addition shall include a showing that the conditions required by this section exist. The judicial officer may issue a writ of possession if he finds that the conditions required by this section exist and the requirements of KRS 425.036 are met. Where a writ of possession has been issued pursuant to this section, a copy of the summons and complaint, a copy of the motion for the writ of possession and any affidavit in support thereof shall be served upon persons required by KRS 425.096 to be served with a writ of possession.

History. Enact. Acts 1976, ch. 91, § 15.

Notes to Decisions

Cited:

Farmers Deposit Bank v. Ripato, 760 S.W.2d 396, 1988 Ky. LEXIS 59 ( Ky. 1988 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

425.080. Arrest of defendant for purpose of surrender. [Repealed.]

Compiler’s Notes.

This section (C.C. 170: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.081. Motion to quash writ.

  1. Any defendant whose property has been taken pursuant to a writ of possession issued under this chapter may apply for an order that the writ be quashed and any property levied on pursuant to the writ be released. Such application shall be made by noticed motion and the provisions of KRS 425.031 .
  2. Pending the hearing on the defendant’s motion the judicial officer may order that delivery pursuant to KRS 425.101 of any property previously levied upon be stayed. If the judicial officer determines that the plaintiff is not entitled to a writ of possession, he shall quash the writ of possession and order the release of any property previously levied upon.

History. Enact. Acts 1976, ch. 91, § 16; 1984, ch. 158, § 4, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Possession, Form 152.09.

425.085. When liability of bail becomes fixed — Amount — Action against bail. [Repealed.]

Compiler’s Notes.

This section (C.C. 171, 172: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.086. Issuance of temporary restraining order in lieu of writ of possession — Effect.

  1. In any case where the plaintiff has made a motion for a writ of possession under KRS 425.076 the court may in its discretion deny the motion for the writ and issue instead a temporary restraining order under this chapter if it determines that the requirements of subsection (3) of KRS 425.076 are satisfied but that the issuance of the temporary restraining order instead of the writ of possession would be in the interest of justice and equity to the parties, taking into account the effect on the defendant of issuing a writ of possession ex parte, the effect on the plaintiff of issuing the temporary restraining order instead of the writ and other factors that bear on equity and justice under the circumstances of the particular case.
  2. If the court issues a temporary restraining order under this section, the plaintiff’s motion for a writ of possession shall be treated as a motion for a writ of possession under KRS 425.011 .

History. Enact. Acts 1976, ch. 91, § 17.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Injunctions, § 156.00.

425.090. Exoneration of bail. [Repealed.]

Compiler’s Notes.

This section (C.C. 173: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.091. Levy on property.

  1. Except as otherwise provided in this section, upon receipt of the writ of possession the levying officer shall search for and take custody of the specified property, if it be in the possession of the defendant or his agent, either by removing the property to a place of safe keeping or upon order of the judicial officer by installing a keeper.
  2. If the specified property is used as a dwelling, levy shall be made by placing a keeper in charge of the property for two (2) days at the plaintiff’s expense, after which period the levying officer shall remove the occupants and any contents not specified in the writ and shall take exclusive possession of the property.
  3. If the specified property or any part of it is in a private place, the levying officer shall at the time he demands possession of the property announce his identity, purpose and authority. If the property is not voluntarily delivered, the levying officer may cause any building or enclosure where the property may be located to be broken open in such a manner as he reasonably believes will cause the least damage and may call upon the power of any other law enforcement officers of the county to aid and protect him, but, if he reasonably believes that entry and seizure of the property will involve a substantial risk of death or serious bodily harm to any person he shall refrain from seizing the property and shall promptly make a return to the court from which the writ issued setting forth the reasons for his belief that the risk exists. In such case, the judicial officer shall make such orders as may be appropriate.
  4. Nothing in this section authorizes the levying officer to enter or search any private place not specified in the writ of possession or other order of the judicial officer.

History. Enact. Acts 1976, ch. 91, § 18.

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Possession, Form 152.09.

425.095. Liability of officer as bail — Discharge. [Repealed.]

Compiler’s Notes.

This section (C.C. 174: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.096. Service of writ and bond by levying officer — Attachment of property removed from the county.

  1. At the time of the levy, the levying officer shall deliver to the person in possession of the property a copy of the writ of possession with a copy of the plaintiff’s bond attached.
  2. If no one is in possession of the property at the time of levy, the levying officer shall subsequently serve the writ and attached bond on the defendant or if he cannot be found the levying officer shall leave the writ and attached bond at the usual place of abode of the person in possession of the property.
  3. If after a writ of possession has been placed in the hands of the sheriff, any property of the defendant be removed from the county the sheriff may pursue and attach it in another county within twenty-four (24) hours after the removal.

History. Enact. Acts 1976, ch. 91, § 19.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Possession, Form 152.09.

425.100. Fixing and enforcement of officer’s liability as bail. [Repealed.]

Compiler’s Notes.

This section (C.C. 175: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.101. Delivery of property — Redelivery — Levy upon perishable property — Control of property.

  1. After the levying officer takes possession pursuant to a writ of possession, he shall keep the property in a secure place. Except as otherwise provided by KRS 425.081 :
    1. If bond with sufficient surety for redelivery is not filed and plaintiff’s sureties are not excepted to, the sheriff shall deliver the property to plaintiff ten (10) days after levy of the writ of possession, upon receiving his fees for taking and necessary expenses for keeping the property.
    2. If a bond with sufficient surety is filed within ten (10) days after levy of the writ of possession and defendant’s sureties are not excepted to, the sheriff or plaintiff, if plaintiff holds possession under subsection (3)(a) of this section shall redeliver the property to defendant upon expiration of the time to so except, upon receiving his fees for taking and necessary expenses for keeping the property not already paid or advanced by the plaintiff.
    3. If the plaintiff’s sureties are excepted to, or if a bond for redelivery is filed within ten (10) days after levy of the writ of possession and defendant’s sureties are excepted to, the sheriff shall not deliver or redeliver the property until the time provided in KRS 425.121 .
  2. Notwithstanding subsection (1) of this section, where not otherwise provided by contract, upon a showing that the property is perishable or will greatly deteriorate or depreciate in value or for some other reason that the interests of the parties will best be served thereby, the judicial officer may order that the property be sold and the proceeds deposited in the court to abide the judgment in the action.
  3. If it is impractical, or impossible, for the sheriff to retain possession and control of the property levied upon, he may:
    1. Immediately, upon seizure, place the property in the hands of the plaintiff, who shall be required to keep the property in a secure place and manner within the Commonwealth of Kentucky for the mandatory ten (10) day holding period, subject to all provisions of paragraphs (1)(b) and (c) of this section, excepting those of expenses and fees.
    2. If the property levied upon shall consist of all, or substantially all, of the property within a structure or area, not used as a dwelling, and upon the consent of any third party owner or occupant of the structure or area, levy the writ of possession by securing with locks, or other means, the place or area, and holding the property at the place or area where it is found and levied upon, provided that the defendant shall be afforded a reasonable right of access.

History. Enact. Acts 1976, ch. 91, § 20; 1980, ch. 188, § 294, effective July 15, 1980; 1984, ch. 158, § 5, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Possession, Form 152.09.

425.105. Liability of bail to officer. [Repealed.]

Compiler’s Notes.

This section (C.C. 176: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.106. Return of writ — Procedure when claimed property has been disposed of or concealed.

  1. The levying officer shall return the writ of possession with his proceedings thereon, to the court in which the action is pending within 30 days after levy but in no event more than 60 days after the writ is issued.
  2. If it appears from the return of the writ of possession that the property claimed has been disposed of or concealed so that the writ cannot be executed, the court may compel the attendance of the defendant, examine him on oath as to the situation of the property, and punish a disobedience of its orders in this respect as in cases of contempt.

History. Enact. Acts 1976, ch. 91, § 21.

425.110. Proceedings to vacate order of arrest or to reduce bail — Evidence. [Repealed.]

Compiler’s Notes.

This section (C.C. 177, 178: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.111. Plaintiff’s bond.

  1. The judicial officer shall not issue a temporary restraining order or a writ of possession until the plaintiff has filed with the court a written bond that, if the plaintiff fails to recover judgment in the action, the plaintiff shall return the property to the defendant, if return thereof be ordered, and shall pay all costs that may be awarded to the defendant and all damages referred to in subsection (2), not exceeding the amount of the bond. The bond shall be executed by one (1) or more sufficient sureties in an amount not less than twice the value of the property as determined by the judicial officer. This subsection may be satisfied by the posting of a cash bond.
  2. The damages referred to in subsection (1) are all damages sustained by the defendant which are proximately caused by operation of the temporary restraining order and preliminary injunction, if any, the levy of the writ of possession, and the loss of possession of the property pursuant to levy of the writ of possession or in compliance with an order issued under KRS 425.036 .

History. Enact. Acts 1976, ch. 91, § 22.

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Transferring Possession (Another Form), Form 152.11.

Caldwell’s Kentucky Form Book, 5th Ed., Plaintiff’s Bond — No Surety, Form 152.15.

Caldwell’s Kentucky Form Book, 5th Ed., Plaintiff’s Bond on Writ of Possession and Order Transferring Possession, Form 152.14.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Temporary Restraining Order, Form 152.12.

425.115. Scire facias against bail abolished. [Repealed.]

Compiler’s Notes.

This section (C.C. 179: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.116. Defendant’s bond.

  1. The defendant or any other person claiming interest in the property, may prevent the plaintiff from taking possession of property pursuant to a writ of possession or regain possession of property so taken by filing with the court in which the action was brought, a written bond executed by one or more sufficient sureties in an amount equal to either the amount of the plaintiff’s bond required by KRS 425.111 or if there has been no judicial determination, the value of the property stated in the plaintiff’s application for a writ of possession. The bond shall state that, if the plaintiff recovers judgment on the action, the defendant shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property, not exceeding the amount of the bond. The damages recoverable by the plaintiff pursuant to this section shall include all damages proximately caused by the plaintiff’s failure to gain or retain possession.
  2. The defendant’s bond may be filed at any time before or after levy of the writ of possession. A copy of the bond shall be mailed to the levying officer and to the plaintiff. A certification stating that such copies have been mailed shall be filed with the court at the time the bond is filed.
  3. The defendant’s bond shall state the address to which a copy of the notice of exception to sureties may be sent.
  4. If an undertaking for redelivery is filed and defendant’s sureties are not excepted to, the levying officer shall deliver the property to the defendant, or, if the plaintiff has previously been given possession of the property, the plaintiff shall deliver such property to the defendant. If a bond for redelivery is filed and defendant’s sureties are excepted to, the provision of KRS 425.101 shall apply.

History. Enact. Acts 1976, ch. 91, § 23.

NOTES TO DECISIONS

Cited:

Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 1978 Ky. App. LEXIS 608 (Ky. Ct. App. 1978).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Possession, § 152.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Possession, Form 152.09.

425.120. Plaintiff may claim immediate delivery of property. [Repealed.]

Compiler’s Notes.

This section (C.C. 180: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.121. Exception to sureties — Effect of failure to justify.

  1. The defendant may except to the plaintiff’s sureties not later than 10 days after levy of the writ of possession by filing with the court in which the action was brought a notice of exception to sureties and mailing a copy of the notice to the levying officer and to the plaintiff. The notice of exception filed with the court shall contain a certification that copies have been mailed to the levying officer and to the plaintiff.
  2. The plaintiff may except to the defendant’s sureties not later than 10 days after the defendant’s bond is filed by filing with the court in which the action was brought a notice of exception to sureties and mailing a copy of the notice to the levying officer and to the defendant at the address set out in his bond. The notice of exception filed with the court shall contain a certification that copies have been mailed to the levying officer.
  3. If the plaintiff or the defendant does not except to the sureties of the other as provided in this section he waives all objection to them.
  4. When excepted to, the sureties shall justify that they are sufficient before a judicial officer of the court in which the action was brought at a time specified by the excepting party and in compliance with the rules of procedure.
  5. If the plaintiff’s sureties, or others in their place, fail to justify at the time and place appointed or do not qualify, the judicial officer shall vacate the temporary restraining order or preliminary injunction, if any, and the writ of possession and, if levy has occurred, order the levying officer to return the property to the defendant. If the plaintiff’s sureties do qualify the judicial officer shall order the levying officer to deliver the property to the plaintiff.
  6. If the defendant’s sureties or others in their place fail to justify at the time and place appointed or do not qualify, the judicial officer shall order the levying officer to deliver the property to the plaintiff, or if the plaintiff has previously been given possession of the property he shall retain such possession. If the defendant’s sureties do qualify, the judicial officer shall order the levying officer or the plaintiff to deliver the property to the defendant.

History. Enact. Acts 1976, ch. 91, § 24.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Trespass to Chattel, § 126.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Personal Property, Form 150.09.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Real Property, Form 150.08.

425.125. Clerk to make order of delivery — Required contents of affidavit. [Repealed.]

Compiler’s Notes.

This section (C.C. 181, 182: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.126. Execution on transferable securities, security entitlements, or an option or right to acquire a security — Requirements of the order — Duty of corporate officials.

  1. If any claim be made by attachment, garnishment, or other judicial order to a security or security entitlement, as defined in KRS 355.8-102(1), such order shall not be valid as against any securities intermediary, as defined in KRS 355.8-102(1), or any issuer, as defined in KRS 355.8-201, or nominee or agent of either having any interest in, custody of, or control over such security or security entitlement, unless such order specifies the following:
    1. For a security, the name of the issuer, the class or series of the security, or both, the number of shares or other units of interest represented by the security, the name of the debtor and the name of the person, if different from the debtor, having an account on the books of the securities intermediary or issuer in which such security is shown;
    2. For an option or right to acquire a security, the name of the issuer, the class or series of the security in which the option or right to acquire exists, the name of the debtor and the name of the person, if different from the debtor, having an account on the books of the securities intermediary or issuer in which such option or right is shown; or
    3. For a security entitlement, other than a security or an option or right to acquire a security, the name of the debtor and the name of the person, if different from the debtor, having an account on the books of the securities intermediary or issuer in which such security entitlement is shown.
  2. An attachment, garnishment, or other judicial order of the kind described in subsection (1) of this section which does not set forth all the elements of identification required by subsection (1) of this section shall in no manner bind or give notice of such claim to any securities intermediary, as defined in KRS 355.8-102(1), or any issuer, as defined in KRS 355.8-201, or nominee or agent of either having an interest in, custody of, or control over such security, or option or right to acquire such security, or security entitlement, and such securities intermediary, issuer, nominee, or agent may transfer, pledge, or in any manner deal with such security or option, or right to acquire such security or security entitlement in disregard of such order or claim without liability to the claimant.
  3. It shall be the duty of every person mentioned in subsections (1) and (2) of this section to whom any plaintiff or any judgment creditor shall apply therefor, in good faith and for a proper purpose stated in the request, to furnish him or her a written statement setting forth any reasonably requested information in such person’s possession, custody, or control that concerns the ownership of or records concerning ownership of a security, an option or right to acquire a security, or a security entitlement concerning a specifically identified person. The statement shall be provided within ten (10) days of receipt of the written request and a failure to perform this duty may be punished by the court as a contempt.

History. Enact. Acts 1976, ch. 91, § 25; 2010, ch. 155, § 4, effective July 15, 2010.

NOTES TO DECISIONS

1. Real Property.

The intention of the Legislature in enacting former KRS 425.311 (now repealed) was not to impose the impossible duty of obtaining a writ of possession on real property prior to securing an attachment. Leonard v. Farmers & Traders Bank, 605 S.W.2d 770, 1980 Ky. App. LEXIS 355 (Ky. Ct. App. 1980).

425.130. Order of delivery — When returnable. [Repealed.]

Compiler’s Notes.

This section (C.C. 183: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.135. Bond required of plaintiff — Claimant entitled to benefit. [Repealed.]

Compiler’s Notes.

This section (C.C. 184: trans. and amend. Acts 1952, ch. 84, §§ 1, 8) was repealed by Acts 1976, ch. 91, § 45.

425.140. Form of bond in action against officer. [Repealed.]

Compiler’s Notes.

This section (C.C. 185: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.145. Execution of order. [Repealed.]

Compiler’s Notes.

This section (C.C. 186: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.150. Disposition of property taken by sheriff. [Repealed.]

Compiler’s Notes.

This section (C.C. 187: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.155. Defendant may retain property by executing bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 188: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.160. When property to be appraised. [Repealed.]

Compiler’s Notes.

This section (C.C. 189: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.165. Sheriff allowed expenses for keeping property. [Repealed.]

Compiler’s Notes.

This section (C.C. 190: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.170. Proceedings if stranger claims property. [Repealed.]

Compiler’s Notes.

This section (C.C. 191: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.175. Orders may be directed to county. [Repealed.]

Compiler’s Notes.

This section (C.C. 192: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.180. Proceedings for discovery of property. [Repealed.]

Compiler’s Notes.

This section (C.C. 193: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.185. Grounds of attachment in action for recovery of money or property — Procedure for earnings. [Repealed.]

Compiler’s Notes.

This section (C.C. 194: trans. Acts 1952, ch. 84, § 1; amend. Acts 1970, ch. 217, § 5) was repealed by Acts 1976, ch. 91, § 45.

425.190. Proceedings for obtaining order of garnishment. [Repealed.]

Compiler’s Notes.

This section (C.C. 194a: amend. Acts 1940, ch. 36; trans. and amend. Acts 1952, ch. 84, §§ 1, 9; 1970, ch. 217, § 6) was repealed by Acts 1976, ch. 91, § 45.

425.195. Clerk to issue order of attachment — Required averments of affidavit. [Repealed.]

Compiler’s Notes.

This section (C.C. 196: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.200. When affidavit need not aver defendant’s avoidance of service. [Repealed.]

Compiler’s Notes.

This section (C.C. 197: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.205. Bond required before issual of order — Form. [Repealed.]

Compiler’s Notes.

This section (C.C. 198: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.210. Orders of attachment or garnishment of earnings — Priority — Form. [Repealed.]

Compiler’s Notes.

This section (C.C. 199: trans. and amend. Acts 1952, ch. 84, §§ 1, 10; 1966, ch. 157, § 5(a) to (f); 1970, ch. 217, § 7) was repealed by Acts 1976, ch. 91, § 45.

425.211. Form of order — Answer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 217, § 8) was repealed by Acts 1976, ch. 91, § 45.

425.215. Order of attachment may issue to any county — Costs. [Repealed.]

Compiler’s Notes.

This section (C.C. 201: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.220. Precedence of orders. [Repealed.]

Compiler’s Notes.

This section (C.C. 202: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.225. Execution of order. [Repealed.]

Compiler’s Notes.

This section (C.C. 203: amend. Acts 1886, ch. 1163; trans. and amend. Acts 1952, ch. 84, §§ 1, 11; 1974, ch. 266, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.230. Duty of officer on whom order executed — Penalty. [Repealed.]

Compiler’s Notes.

This section (C.C. 204: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.235. Duty of garnishee — Penalty. [Repealed.]

Compiler’s Notes.

This section (C.C. 205: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.240. Personal property to be first taken. [Repealed.]

Compiler’s Notes.

This section (C.C. 206: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.245. Attachment of fund in court. [Repealed.]

Compiler’s Notes.

This section (C.C. 207: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.250. Attachment of joint property — Bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 208: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.255. Attachment of joint property in action against joint debtors. [Repealed.]

Compiler’s Notes.

This section (C.C. 209: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.260. Attachment of joint property — Bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 210: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.265. Officer may require execution of indemnity bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 211: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.270. Lien of attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 212: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.275. Sheriff may pursue and attach property in another county. [Repealed.]

Compiler’s Notes.

This section (C.C. 213: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.280. Possessor may retain property by executing bond — Appraisement — Defense not allowed. [Repealed.]

Compiler’s Notes.

This section (C.C. 214-216: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.285. Form of sheriff’s return. [Repealed.]

Compiler’s Notes.

This section (C.C. 217: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.290. Preservation, use or sale of attached property. [Repealed.]

Compiler’s Notes.

This section (C.C. 218: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.295. Expenses allowed for keeping property — Allowances for keeping steamboat. [Repealed.]

Compiler’s Notes.

This section (C.C. 219: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.300. Proceedings to compel the giving of information concerning attached property. [Repealed.]

Compiler’s Notes.

This section (C.C. 220: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

Attachment

425.301. Grounds for attachment in action for recovery of money.

The plaintiff may, at or after the commencement of an action, have an attachment against the property of the defendant, including garnishees, as a security for the satisfaction of such judgment as may be recovered:

  1. In an action for the recovery of money against:
    1. A defendant who is a foreign corporation or nonresident of the state; or
    2. Who has been absent herefrom for four (4) months; or
    3. Has departed herefrom with intent to defraud his creditors; or
    4. Has left the county of his residence to avoid the service of a summons; or
    5. So conceals himself that a summons cannot be served upon him; or
    6. Is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff’s claim, or the claims of said defendant’s creditors; or
    7. Has sold, conveyed, or otherwise disposed of, his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder or delay his creditors; or
    8. Is about to sell, convey, or otherwise dispose of his property, with such intent. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a nonresident of this state, for any claim other than a debt or demand arising upon a contract, express or implied, or a judgment or award.
  2. In an action for the recovery of money due upon a contract, judgment or award, if the defendant have no property in this state subject to execution, or not enough thereof to satisfy the plaintiff’s demand, and the collection of the demand will be endangered by delay in obtaining judgment or a return of no property found;
  3. Before an order of attachment shall issue prior to judgment, the person seeking the order must first make a demand in writing at or after the time the suit is filed, by delivering such demand and a copy of the complaint, motion and summons to the debtor or by sending them to him by registered or certified mail, return receipt requested, to his last known place of residence, at least seven (7) and not more than sixty (60) days before such order is sought. The demand shall contain a statement in substance that the debtor has seven (7) days in which to petition the court for a hearing or in which to pay the claim in full, and that unless a hearing is set or the claim paid, an order will be sought to subject his property to payment of the claim. The statement shall identify the court in which the suit has been filed, the grounds therefor, the date of the demand, the amount of the claim, and the name and address of the plaintiff and his attorney. An affidavit of the plaintiff or his attorney evidencing compliance with this section shall be filed before an order shall be issued.

History. Enact. Acts 1976, ch. 91, § 26; 1978, ch. 399, § 4, effective June 17, 1978.

NOTES TO DECISIONS

1. What Property May Be Attached.

It is fundamental to the creation of a lawful attachment that the property seized be that of the defendant debtor. Placer Coal, Inc. v. Rhondale Coal Services Co., 684 S.W.2d 25, 1984 Ky. App. LEXIS 615 (Ky. Ct. App. 1984).

2. Unrelated Real Estate.

The presence of real estate in the Commonwealth, not related to the subject matter of the litigation, does not constitute sufficient contact with the forum so as to justify a lien on that property to enforce a judgment in a quasi in rem action. Citizens Bank & Trust Co. v. Collins, 762 S.W.2d 411, 1988 Ky. LEXIS 72 ( Ky. 1988 ).

2.5 Burden of Proof.

Employees were not entitled to prejudgment attachment because they failed to establish that they were more likely than not to prevail on their claim that the employer breached their employment agreements by failing to pay them a bonus. Handmaker v. CertusBank, N.A., 189 F. Supp. 3d 663, 2016 U.S. Dist. LEXIS 67709 (W.D. Ky. 2016 ).

Cited:

USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 1982 U.S. App. LEXIS 25304 (6th Cir. 1982); USACO Coal Co. v. Carbomin Energy, Inc., 539 F. Supp. 807, 1982 U.S. Dist. LEXIS 9600 (W.D. Ky. 1982 ); In re Pendleton, 40 B.R. 306, 1984 Bankr. LEXIS 6271 (Bankr. W.D. Ky. 1984 ).

Opinions of Attorney General.

A circuit court clerk may not issue an order of attachment where the defendant has not been served with a summons since subdivision (3) of this section specifically requires that a copy of the complaint, motion and summons be either delivered to the debtor or mailed by certified or registered mail (return receipt requested) to the debtor, and that is tantamount to requiring that the summons must be served on the defendant prior to the issuance of an order of attachment. OAG 80-235 .

A plaintiff may, by filing a written motion, procure an order of attachment by filing first a complaint, and after the issuance of a summons in good faith, provided he alleges in the motion the existence of any of the grounds laid out in either this section or KRS 425.306 , and complies with the remaining requirements of subsection (2) of KRS 425.307 ; however, before the circuit clerk may issue the order of attachment, the clerk must see to it that subsection (3) of this section has been complied with, unless the defendant has requested a hearing. OAG 80-235 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Compliance, Form 150.04.

Caldwell’s Kentucky Form Book, 5th Ed., Notice and Demand Letter, Form 150.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Attachment, Form 150.05.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Order of Attachment Against Non-Resident, Form 150.06.

Kentucky Instructions To Juries (Civil), 5th Ed., Abuse of Legal Process, § 27.06.

Petrilli, Kentucky Family Law, Maintenance, § 25.28.

425.302. Application for release of attachment.

Any defendant whose property is attached pursuant to an attachment issued under KRS 425.301 , 425.306 , or 425.308 , may apply for an order that the attachment be quashed and any property taken, or attached, be released from the attachment. Such application shall be made by noticed motion. A defendant making a motion to quash pursuant to this section shall be entitled to an immediate hearing.

History. Enact. Acts 1984, ch. 158, § 7, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Application for Release Of Money Held In Attachment Or Garnishment, Form 150.14.

425.305. Discharge of attachment upon giving of bond — Sheriff or clerk may take bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 221, 222: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.306. Grounds of attachment for debt or liability upon a contract.

  1. Before a debt or liability upon a contract becomes due or matures, an equitable action for indemnity may be brought by a creditor against his debtor; by a surety against his principal; or by one who is jointly liable with another for such debt or liability, against the latter:
    1. If the defendant be about to depart from this state, and, with intent to defraud his creditors, have concealed or removed from this state his property, or so much thereof that the process of court, after judgment, cannot be executed.
    2. If there exist against the defendant any of the grounds for an attachment which are mentioned in paragraphs (c), (d), (e), (f), (g) and (h) of subsection (1) of KRS 425.301 .
  2. Upon an action being filed, if the petition shows the existence of any of the grounds specified in paragraph (b) of subsection (1) of this section the court may order an attachment.

History. Enact. Acts 1976, ch. 91, § 27; 1980, ch. 188, § 295, effective July 15, 1980.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice and Demand Letter, Form 150.03.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Attachment, Form 150.05.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Order of Attachment Against Non-Resident, Form 150.06.

425.307. Motion for order of attachment.

  1. Upon filing of the complaint or at any time prior to judgment, the plaintiff may apply pursuant to this chapter for an order of attachment by filing a written motion for the order with the court in which the action is brought.
  2. The motion shall be executed under oath and shall include all of the following:
    1. The nature of the plaintiff’s claim;
    2. That it is just;
    3. The sum which the plaintiff believes he ought to recover; and
    4. The existence of any of the grounds for an attachment set forth in KRS 425.301 or 425.306 .
  3. The order of attachment shall be issued by the clerk upon compliance with KRS 425.301 (3) unless the defendant has requested a hearing, in which case a hearing shall be conducted pursuant to KRS 425.031 .

History. Enact. Acts 1978, ch. 399, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1. Averment of Just Claim.

Although a bank’s affidavit, used to support a writ of attachment of real property, did not allege that the claim against the debtor was just, the attachment was not improperly obtained, where the bank obtained its attachment under an interim statute which did not require an averment that the claim was just. Leonard v. Farmers & Traders Bank, 605 S.W.2d 770, 1980 Ky. App. LEXIS 355 (Ky. Ct. App. 1980).

Trial court properly found that a coal mining landlord held a valid first priority landlord’s lien in the tenant’s remaining property because the landlord was not bound by the strict attachment motion requirements and had complied with all the necessary requirements to perfect its lien in the subject property, and the landlord was entitled to 11 months’ rent because it had “sued out” within the 120-day requirement. Taggart Global Operations, LLC v. Elk Horn Coal Co., LLC, 415 S.W.3d 665, 2013 Ky. App. LEXIS 155 (Ky. Ct. App. 2013).

Opinions of Attorney General.

A plaintiff may, by filing a written motion, procure an order of attachment by filing first a complaint, and after the issuance of a summons in good faith, provided he alleges in the motion the existence of any of the grounds laid out in either KRS 425.301 or 425.306 , and complies with the remaining requirements of subsection (2) of this section; however, before the circuit clerk may issue the order of attachment, the clerk must see to it that KRS 425.301 (3) has been complied with, unless the defendant has requested a hearing. OAG 80-235 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Attachment, Form 150.05.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion for Order of Attachment Against Non-Resident, Form 150.06.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Personal Property, Form 150.09.

425.308. Ex parte order of attachment, issuance.

  1. A judicial officer, except as otherwise provided by statute, may issue an ex parte order of attachment if it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.
  2. The plaintiff’s motion shall satisfy the requirements of KRS 425.307 and in addition shall include a showing that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

History. Enact. Acts 1978, ch. 399, § 2, effective June 17, 1978.

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Personal Property, Form 150.09.

425.309. Posting of bond by plaintiff — Posting of bond by defendant — Exceptions to sureties.

  1. An order of attachment shall not be issued until a bond has been executed by one (1) or more sufficient sureties of the plaintiff in an amount not less than double the amount of the plaintiff’s claim.
  2. Should the defendant post a bond, with sufficient sureties, insuring compliance with a final judgment, in an amount equal to the plaintiff’s claim, including court costs and attorney’s fees as stated in plaintiff’s complaint, the attachment shall be dissolved and any proceeds of the attachment received by the plaintiff shall be returned to the defendant.
  3. Exceptions to sureties shall be made in accordance with KRS 425.121 .

History. Enact. Acts 1978, ch. 399, § 3, effective June 17, 1978; 1984, ch. 158, § 6, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Premiertox 2.0 v. Miniard, 407 S.W.3d 542, 2013 Ky. LEXIS 385 ( Ky. 2013 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Practice and Procedure in Kentucky, Vol. 42, No. 3, October 1978, Ky. Bench & Bar 12.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Mapother, the Constitutionality of Kentucky’s Prejudgment Seizure Law, 68 Ky. L.J. 557 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Surety on Attachment Bond, Form 150.12.

Caldwell’s Kentucky Form Book, 5th Ed., Bond for Attachment — No Surety, Form 150.11.

Caldwell’s Kentucky Form Book, 5th Ed., Bond for Attachment — Surety, Form 150.10.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Personal Property, Form 150.09.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Attachment — Real Property, Form 150.08.

425.310. Payment of money by garnishee — Costs. [Repealed.]

Compiler’s Notes.

This section (C.C. 223: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.311. Execution of attachment under KRS 425.301 or 425.306. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 91, § 28) was repealed by Acts 1978, ch. 399, § 6, effective June 17, 1978.

425.312. Writ of possession. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 399, § 5) was repealed and reenacted as KRS 425.012 by Acts 1980, ch. 188, § 296.

425.315. Appearance and answer by garnishee — Procedure if garnishee fail to appear. [Repealed.]

Compiler’s Notes.

This section (C.C. 224 to 226: trans. and amend. Acts 1952, ch. 84, §§ 1, 12) was repealed by Acts 1976, ch. 91, § 45.

425.316. Examination.

  1. Any person owing debts to the defendant, or having in his possession or under his control any personal property belonging to the defendant, may be required to appear before the court and be examined on oath regarding such property.
  2. If the person ordered to appear pursuant to this section fails to appear, the court may as in cases of contempt punish a disobedience.
  3. After such examination, if the person admits that he is indebted to the defendant, or that he holds property belonging to the defendant, the court may order that such debt or property belonging to the defendant be attached in the manner and under the conditions provided by this chapter and that any amount owing be paid to the levying officer. If the person admits that he holds property which belongs to the defendant and in which he claims no interest the court may order that such property be delivered to the levying officer on such terms as may be just.

History. Enact. Acts 1976, ch. 91, § 29.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Order Requiring Person Owing Debts to Defendant to be Examined, Form 154.02.

425.320. Procedure if garnishee indebted to defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 225: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.325. Action by plaintiff against garnishee — Attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 227: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.330. Proceedings upon judgment for defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 228: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.335. Proceedings upon judgment for plaintiff. [Repealed.]

Compiler’s Notes.

This section (C.C. 229: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.340. Affidavit required before sale of realty seized under attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 230: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.345. Return of surplus to defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 231: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.346. Entry of appearance by executing bond to discharge attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 690: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.350. Proceedings to compel delivery of property and payment of proceeds. [Repealed.]

Compiler’s Notes.

This section (C.C. 232: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.355. Court may control property and proceeds. [Repealed.]

Compiler’s Notes.

This section (C.C. 233: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.360. Court may order sheriff to retake property. [Repealed.]

Compiler’s Notes.

This section (C.C. 234: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.365. Commissioner may ascertain and report amounts and priorities of several attachments. [Repealed.]

Compiler’s Notes.

This section (C.C. 235: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.370. Additional surety on plaintiff’s bond may be required. [Repealed.]

Compiler’s Notes.

This section (C.C. 236: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.375. Grounds of action for indemnity — Order of arrest or attachment may be obtained. [Repealed.]

Compiler’s Notes.

This section (C.C. 237, 238: amend. Acts 1888, ch. 847; trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.380. Order to specify sum for which allowed. [Repealed.]

Compiler’s Notes.

This section (C.C. 239: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.385. Bond required before issual of order. [Repealed.]

Compiler’s Notes.

This section (C.C. 240: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.390. Procedures governing arrests and attachments in actions for indemnity. [Repealed.]

Compiler’s Notes.

This section (C.C. 241: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.395. Judgment before maturity of debt — Creditor to be party — Costs. [Repealed.]

Compiler’s Notes.

This section (C.C. 242: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.400. Judgment in action by creditor — Application of money under control of court. [Repealed.]

Compiler’s Notes.

This section (C.C. 243: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.405. Judgment in action by surety against principal. [Repealed.]

Compiler’s Notes.

This section (C.C. 244: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.410. Judgment in action between persons jointly liable. [Repealed.]

Compiler’s Notes.

This section (C.C. 245: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.415. Defendant’s money under court’s control to be applied in satisfaction of judgment. [Repealed.]

Compiler’s Notes.

This section (C.C. 246: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.420. Judgment against defendant to include costs — Enforcement — Judgment before maturity of debt. [Repealed.]

Compiler’s Notes.

This section (C.C. 247: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.425. Joint debtor to pay residue of creditor’s demand before judgment. [Repealed.]

Compiler’s Notes.

This section (C.C. 249, 250: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.430. When specific attachments allowed — Procedure. [Repealed.]

Compiler’s Notes.

This section (C.C. 249, 250: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.435. Who may grant specific attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 251: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.440. Plaintiff’s bond — Defendant may retain property upon giving bond — Order not to issue until bond executed. [Repealed.]

Compiler’s Notes.

This section (C.C. 252, 253: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.445. Requisites of order — Execution and return. [Repealed.]

Compiler’s Notes.

This section (C.C. 254: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.450. Disposition of attached property. [Repealed.]

Compiler’s Notes.

This section (C.C. 255: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.455. Sheriff may pursue and retake removed property. [Repealed.]

Compiler’s Notes.

This section (C.C. 256: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.460. Defendant must give information concerning concealed or removed property. [Repealed.]

Compiler’s Notes.

This section (C.C. 257: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.465. Procedures applicable to specific attachments. [Repealed.]

Compiler’s Notes.

This section (C.C. 258: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.470. Time for sustaining or discharging attachments. [Repealed.]

Compiler’s Notes.

This section (C.C. 259: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.475. Attachment discharged upon judgment for defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 260: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.480. When judgment for plaintiff sustains attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 261: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.485. Use of property, proceeds or securities to satisfy judgment. [Repealed.]

Compiler’s Notes.

This section (C.C. 262: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.490. Procedure for controverting statements of affidavit upon which attachment issued — Time for filing. [Repealed.]

Compiler’s Notes.

This section (C.C. 263: trans. and amend. Acts 1952, ch. 84, §§ 1, 13) was repealed by Acts 1976, ch. 91, § 45.

425.495. Trial of attachment — Evidence. [Repealed.]

Compiler’s Notes.

This section (C.C. 264: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.500. When defendant may move for discharge of attachment — Notice. [Repealed.]

Compiler’s Notes.

This section (C.C. 265: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

Garnishment

425.501. Proceedings for obtaining order of garnishment.

  1. Any person in whose favor a final judgment in personam has been entered in any court of record of this state may, upon the filing of an affidavit by him or his agent or attorney in the office of the clerk of the court in which the judgment was entered, and in the same cause in which said judgment was obtained showing the date of the judgment and the amount due thereon, and that one (1) or more named persons hold property belonging to, or are indebted to, the judgment debtor, obtain an order of garnishment to be served in accordance with the Rules of Civil Procedure.
  2. The judgment plaintiff shall not be required to execute bond to obtain the order.
  3. The order of garnishment shall be served on the persons named as garnishees, and in addition a copy thereof shall be delivered by the garnishee to the judgment debtor or mailed to him at his last known address, along with a processing fee in the amount of ten dollars ($10) paid by the judgment plaintiff. The processing fee may be retained by the garnishee regardless of whether the court finds that the garnishee was or was not, at the time of service of the order upon him, possessed of any property of the judgment debtor.
  4. The judgment debtor may appear and claim the exemption of any property or debt that is exempt from execution, and on proof of exemption the garnishment shall be discharged as to the exempt property or debt.
  5. If the court finds that the garnishee was, at the time of service of the order upon him, possessed of any property of the judgment debtor, or was indebted to him, and the property or debt is not exempt from execution, the court shall order the property or the proceeds of the debt applied upon the judgment.
  6. Subsequent orders of garnishment against the same or other garnishees may be issued in the same manner until the judgment is satisfied.
  7. The provisions of KRS Chapter 427 shall, as far as applicable, govern proceedings under the order.
  8. The order of garnishment shall be served in accordance with the Rules of Civil Procedure. It shall summon the garnishees to answer in the action in the manner and at the time required for an answer by the Rules of Civil Procedure, and to make due return thereof.

History. Enact. Acts 1976, ch. 91, § 30; 1984, ch. 158, § 8, effective July 13, 1984; 2006, ch. 183, § 15, effective July 12, 2006.

NOTES TO DECISIONS

1. Debtor Under Bankruptcy.

A Chapter 7 debtor under the federal bankruptcy law can exempt and recover funds garnished from the debtor three (3) years before bankruptcy but still held by the clerk of the state court at the time of the bankruptcy petition. In re Richardson, 52 B.R. 237, 1985 Bankr. LEXIS 5529 (Bankr. M.D. Tenn. 1985).

For purposes of interpreting KRS 413.090(1) “execution” could mean either the act of executing an order or the writ of execution itself, which was the formal document issued by the court authorizing a sheriff to levy upon the property of a judgment debtor, as described in KRS 426.020 . Since the term was not limited to writs of execution, but could include KRS 425.501(4) setting forth the procedure for obtaining garnishments, enforcement of judgments pursuant to KRS 426.381(2), judgment liens under KRS 426.720 , and attachments under KRS 425.526 , the judgment creditor was not time-barred under KRS 413.090(1)’s 15-year limitations period from collecting on a judgment it had against the judgment debtor, as it had pursued some of those enforcement techniques outside of a writ of execution that it had used more than 15 years earlier. Wade v. Poma Glass & Specialty Windows, Inc., 394 S.W.3d 886, 2012 Ky. LEXIS 199 ( Ky. 2012 ).

2. When Lien Arises.

A garnishment lien arises under this section when the employer is served with the order of garnishment. In re Harville, 60 B.R. 188, 1986 Bankr. LEXIS 6320 (Bankr. W.D. Ky. 1986 ).

3. Effect of Garnishment Order.

Although the garnishment order creates a lien on the debtor’s nonexempt wages, it does not divest the debtor of his or her interest in the wages; the garnishment summons merely initiates the procedure whereby the creditor seeks to apply the debtor’s nonexempt wages in satisfaction of the underlying judgment. In re Harville, 63 B.R. 371, 1986 Bankr. LEXIS 5671 (Bankr. W.D. Ky. 1986 ).

4. Standing to Claim Exemption.

In a garnishment proceeding, an insurer had no standing to claim an exemption of a judgment debtor for the cash surrender value of debtor’s life insurance policy. Central Supply of Virginia, Inc. v. Commonwealth Life Ins. Co., 787 S.W.2d 273, 1990 Ky. App. LEXIS 44 (Ky. Ct. App. 1990).

5. Challenge to Constitutionality.

Husband’s argument that KRS 425.501 was unconstitutional was not squarely before an appellate court because the husband did not (1) raise the argument before the trial court by requesting a hearing to challenge the husband’s bank account as exempt property, or (2) notify the Office of the Kentucky Attorney General of the argument. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

6. Preemption.

Judgment creditor could not hold a bank liable for finding funds the bank possessed were exempt from garnishment because 31 C.F.R. § 212 allowed the bank to conclusively make such a determination, preempting Ky. Rev. Stat. Ann. § 425.501(5). Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Kentucky's garnishment statutes and law are preempted by the federal regulations in 31 C.F.R. § 212 et seq. because (1) Kentucky law does not give a garnishee standing to assert an exemption on behalf of a judgment debtor, but the federal regulations require a garnishee financial institution to unilaterally determine if any funds in the institution's possession are exempted by federal law, and, (2) if a garnishee identifies money belonging to a judgment debtor, the garnishee must turn the money over to the sheriff, the attorney for the judgment creditor, or the clerk of court, but the federal regulations expressly prohibit the garnishee from turning any exempt funds over and require the garnishee to ensure that the judgment debtor has free access to those funds. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Circuit court did not err in applying Kentucky law to uphold the garnishment order where there was no dispute as to its facial validity, and the garnishee had actual knowledge of the garnishment and expressed her knowledge that she could have claimed exemptions from it. Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558, 2017 Ky. App. LEXIS 45 (Ky. Ct. App. 2017).

Opinions of Attorney General.

Even though this section apparently calls exclusively for service of an order of garnishment by the sheriff, under the express provisions of CR 4.01 the clerk may, at the discretion of the plaintiff, place a copy of the order of garnishment to be served in an envelope, address the envelope to the garnishee-defendant at the address set forth in the caption or at the address set forth in written instructions by plaintiff, affix adequate postage, and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery, etc., as specifically required by CR 4.01, and such will suffice as personal service. OAG 78-136 .

Since the civil order of arrest provisions have been repealed, the referral to order of arrest is meaningless. OAG 78-136 .

The affidavit required by this section must be an original rather than a photocopy. OAG 79-513 .

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Petrilli, Kentucky Family Law, 1991 Supp., Forms, Miscellaneous Actions, Form 8.9.

425.505. Finality of order made at or after judgment — Appeal. [Repealed]

Compiler’s Notes.

This section (C.C. 266: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.506. Attachment or garnishment of earnings — Priority — Order.

  1. An order of garnishment of earnings, as defined in KRS 427.005 , shall create a lien on all nonexempt earnings earned during the pay period in which the order is served on the employer and during those succeeding pay periods which may be designated by the order.
  2. Orders of attachment or garnishment of earnings shall have priority according to the date of service on the employer, each inferior order taking effect as if served at the commencement of the next succeeding pay period not subject to a prior order; provided that no creditor shall cause two (2) orders to be served on the employer against the same employee in the same pay period.
  3. The order shall be served on the employer in triplicate and shall have printed thereon an explanation of subsections (1) and (2) of this section, the percentage of the disposable earnings, as defined in KRS 427.005 , exempted from the order by subsection (2) of KRS 427.010 , and the percentage to be forwarded to the court.
  4. The order shall have printed thereon the following directions to the employer:
    1. That a copy of the order shall be delivered to the employee, a copy retained by the employer for his records, and a copy returned by the employer to the court.
    2. That on the reverse side of the court copy shall be stated, under oath by the employer, the gross amount of earnings and the nonexempt amount of disposable earnings for the designated pay periods subject to the order. If no funds are due, the reasons therefor shall be given.
    3. That the court copy of the order and the nonexempt amount of disposable earnings shall be forwarded to the court.

History. Enact. Acts 1976, ch. 91, § 31; 1988, ch. 103, § 1, effective July 15, 1988.

NOTES TO DECISIONS

1. Effect of Order.

Although the garnishment order creates a lien on the debtor’s nonexempt wages, it does not divest the debtor of his or her interest in the wages; the garnishment summons merely initiates the procedure whereby the creditor seeks to apply the debtor’s nonexempt wages in satisfaction of the underlying judgment. In re Harville, 63 B.R. 371, 1986 Bankr. LEXIS 5671 (Bankr. W.D. Ky. 1986 ).

2. Date of Transfer.

The date of transfer is the date the garnishment lien is created, which under Kentucky law, is the date of service of the summons upon the garnishee. Wilkey v. Credit Bureau Sys. (In re Clark), 171 B.R. 563, 1994 Bankr. LEXIS 1397 (Bankr. W.D. Ky. 1994 ).

According to this section, the date of transfer with regard to a garnishment is the date of service of the garnishment order upon the garnishee; thus a preferential conveyance did not occur within the 180 days preceding the bankruptcy filing as required by KRS 378.070 when the debtor was served with the garnishment over six (6) months prior to filing bankruptcy, even though garnishments were made within the 180 days. Wilkey v. Community Methodist Hosp. (In re Edwards), 219 B.R. 970, 1998 Bankr. LEXIS 415 (Bankr. W.D. Ky. 1998 ).

Cited:

In re Fagan, 26 B.R. 212, 1982 Bankr. LEXIS 3522 (Bankr. W.D. Ky. 1982 ); Morehead v. State Farm Mut. Auto. Ins. Co. (In re Morehead), 249 F.3d 445, 2001 FED App. 0143P, 2001 U.S. App. LEXIS 8009 (6th Cir. Ky. 2001 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Griesmann, One Hit for Garnishment! The New Garnishment Laws, Volume 53, No. 1, Winter 1989 Ky. Bench & B. 20.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer of Garnishee — No Property or Funds, Form 150.31.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Return of Service of Summons and Garnishment, Form 150.29.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Answer of Garnishee — Employer, Form 150.30.

Petrilli, Kentucky Family Law, 1991 Supp., Forms, Miscellaneous Actions, Form 8.9.

425.510. Defendant may move to discharge attachment in vacation — Effect of amendment of affidavit. [Repealed.]

Compiler’s Notes.

This section (C.C. 268: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.511. Appearance of garnishee — Failure to appear.

  1. Each garnishee summoned shall appear. The appearance may be in person; or by the affidavit of the garnishee, served and filed in the manner and at the time required for an answer by the Rules of Civil Procedure, disclosing truly the sum owing by him to the defendant, whether due or not, and the property of the defendant in the possession or under the control of the garnishee; and, in the case of a corporation, any shares of stocks therein held by or for the benefit of the defendant, at or after the service of the order of attachment.
  2. If such garnishee or officer make default, by not appearing, the court may, on the motion of the plaintiff, compel him to appear in person for examination, by process as in cases of contempt; or it may hear proof of any debt owing or property held by the garnishee to or for the defendant, and make such order in relation thereto as if what is so proved had appeared on the examination of the garnishee or officer.

History. Enact. Acts 1976, ch. 91, § 32.

NOTES TO DECISIONS

1. Default by Garnishee.

The creditor does not have an unconditional right to the garnishee’s wages until such proof has been submitted and an appropriate order entered thereto, unless there has been a default by the garnishee. In re Harville, 63 B.R. 371, 1986 Bankr. LEXIS 5671 (Bankr. W.D. Ky. 1986 ).

2. Violation.

Bank technically violated Ky. Rev. Stat. Ann. § 425.511 in a garnishment proceeding because (1) the bank did not disclose the existence of a judgment debtor's account at the bank, even though the funds in the account were exempt from execution, and (2) the statute was not preempted by 31 C.F.R. § 212. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Regulations in 31 C.F.R. § 212 do not preempt Ky. Rev. Stat. Ann. § 425.511 because the federal regulations neither explicitly nor implicitly suggest that it is a violation of federal law for a financial institution to respond to a garnishment order with information as to the amount of funds the institution holds, even if the funds are exempt, so long as the financial institution does not impair the account holder's free access to those funds, meaning a financial institution can comply with Ky. Rev. Stat. Ann. § 425.511 , requiring a garnishee to disclose truly the sum owing to a judgment debtor, without violating the federal regulations. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Resident Defendant, Form 150.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Answer of Garnishee — Employer, Form 150.30.

425.515. Time allowed to apply for reinstatement of attachment. [Repealed.]

Compiler’s Notes.

This section (C.C. 269: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.516. Payment by garnishee — Costs.

The garnishee may pay the money owing to the defendant by him, not exceeding the plaintiff’s claim and costs, to the sheriff having in his hands the order of attachment, or into the court or to such person as the court may direct in accordance with the Rules of Civil Procedure; and to that extent he shall be discharged from liability to the defendant. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and, if he discloses the property of the defendant in his hands, or the true sum owing by him, and delivers or pays the same to the sheriff, or according to the order of the court, he shall be allowed his costs.

History. Enact. Acts 1976, ch. 91, § 33; 1984, ch. 158, § 9, effective July 13, 1984.

NOTES TO DECISIONS

1. Debtor Under Bankruptcy.

A Chapter 7 debtor under the federal bankruptcy law can exempt and recover funds garnished from the debtor three (3) years before bankruptcy but still held by the clerk of the state court at the time of the bankruptcy petition. In re Richardson, 52 B.R. 237, 1985 Bankr. LEXIS 5529 (Bankr. M.D. Tenn. 1985).

Research References and Practice Aids

Kentucky Bench & Bar.

Griesmann, One Hit for Garnishment! The New Garnishment Laws, Volume 53, No. 1, Winter 1989 Ky. Bench & B. 20.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Paying Money on Garnishment, Form 150.32.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

425.520. Reinstatement of attachment by judge of Court of Appeals — Effect — Motion to discharge. [Repealed.]

Compiler’s Notes.

This section (C.C. 267, 270: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 91, § 45.

425.521. Procedure if garnishee indebted to defendant.

If a garnishee, or officer of a corporation summoned as a garnishee, appear in person, he may be examined on oath; and, if it be discovered on such examination that, at the service of the order of attachment upon him, he or the corporation was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property, and the payment, or security for the payment, of the sum owing by the garnishee, into court, or to such person as it may direct — who shall give bond, with security, for the same; or the court may permit the garnishee to retain the property or the sum owing upon the execution of a bond with one (1) or more sufficient sureties, to the effect that the sum shall be paid, or the property be forthcoming, as the court may direct. Performance of such bonds, for the forthcoming of property, may be enforced, as in cases of contempt; upon such bonds for payment of money, execution may be issued as upon replevin bonds.

History. Enact. Acts 1976, ch. 91, § 34.

425.526. Action by plaintiff against garnishee — Attachment.

If a garnishee fails to make a disclosure satisfactory to the plaintiff, the latter may bring an action against him, by petition or amended petition, in the same manner, and the proceedings therein shall be the same as in other actions; and the plaintiff may procure an order of attachment in the same manner, and the proceedings thereupon shall be the same, as is hereinbefore and hereinafter authorized concerning attachments — except that the plaintiff’s affidavit shall state, in addition to the facts required to be stated in KRS 425.301(3), the sum which the defendant owes to the plaintiff’s debtor; and the plaintiff shall not be entitled to attach for or recover more than that sum and costs nor more than the amount of the plaintiff’s claim against his debtor and costs.

History. Enact. Acts 1976, ch. 91, § 35.

NOTES TO DECISIONS

1. Attachment.

For purposes of interpreting KRS 413.090(1) “execution” could mean either the act of executing an order or the writ of execution itself, which was the formal document issued by the court authorizing a sheriff to levy upon the property of a judgment debtor, as described in KRS 426.020 . Since the term was not limited to writs of execution, but could include KRS 425.501(4) setting forth the procedure for obtaining garnishments, enforcement of judgments pursuant to KRS 426.381(2), judgment liens under KRS 426.720 , and attachments under KRS 425.526 , the judgment creditor was not time-barred under KRS 413.090(1)’s 15-year limitations period from collecting on a judgment it had against the judgment debtor, as it had pursued some of those enforcement techniques outside of a writ of execution that it had used more than 15 years earlier. Wade v. Poma Glass & Specialty Windows, Inc., 394 S.W.3d 886, 2012 Ky. LEXIS 199 ( Ky. 2012 ).

2. Garnishment.

Judgment creditor could not hold a bank liable for finding funds the bank possessed were exempt from garnishment because 31 C.F.R. § 212 allowed the bank to conclusively make such a determination, preempting Ky. Rev. Stat. Ann. § 425.501(5). Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

When a bank did not disclose the existence of a judgment debtor's account at the bank, which contained only funds exempt from execution, the bank was not liable for a judgment creditor's underlying judgment against the judgment debtor because the judgment creditor could not prove the judgment creditor would have been able to recover any funds from the account. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Plain language of Ky. Rev. Stat. Ann. § 425.526 is clear that the statute establishes both (1) that a judgment creditor shall not be able to recover more than a garnishee owes to a judgment creditor's debtor, and (2) that in no instance can the judgment creditor obtain a judgment against the garnishee greater than the judgment against the original debtor, so the statute plainly sets a ceiling, not a floor and does not suggest in any way that the judgment creditor is automatically entitled to recover the full amount of the judgment from the garnishee irrespective of holdings of the garnishee in relation to the judgment debtor, but, in fact, states precisely the opposite. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

In order for a judgment creditor to recover an underlying judgment from a garnishee, the judgment creditor must establish that the garnishee's actions caused the creditor to suffer actual damages, which, in most cases, will be measured by the amount the garnishee failed to turn over or freeze and that the judgment creditor is able to establish the creditor would have collected under the garnishment order, but for the garnishee's failure, and the statute cannot be used to punish a garnishee for a mere technical violation that did not result in actual money or other property being wrongfully withheld from the judgment creditor. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

3. Attorney's Fees.

Judgment creditor could not recover attorney's fees against a garnishee because the statute did not so provide. Deal v. First & Farmers Nat'l Bank, Inc., 518 S.W.3d 159, 2017 Ky. App. LEXIS 63 (Ky. Ct. App. 2017).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Attachment and Garnishment, § 150.00.

Receivership

425.600. Appointment of receiver — Appeal from order appointing or refusing to appoint — Powers of receiver.

  1. On the motion of any party to an action who shows that he has, or probably has, a right to, a lien upon, or an interest in, any property or fund, the right to which is involved in the action, and that the property or fund is in danger of being lost, removed or materially injured, the court may appoint a receiver, or order the master commissioner to take charge of the property or fund during the pendency of the action, and may order and coerce the delivery of it to him. The order of a court appointing or refusing to appoint a receiver, shall be deemed a final order for the purpose of an appeal; Provided, that such order shall not be superseded.
  2. The receiver or master commissioner has, under the control of the court, power to bring and defend actions, respecting the property, to take and keep possession of the property, to receive rents, collect debts and generally to do such acts respecting the property as the court may authorize.
  3. Any income accruing during the pendency of proceedings under this section shall follow the property upon final disposition of the case.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 54, effective January 2, 1978.

Research References and Practice Aids

Kentucky Law Journal.

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Appointment of Receiver in Foreclosure Action, Form 157.02.

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Receiver, Form 157.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receivership, § 157.00.

CHAPTER 426 Enforcement of Judgments

426.005. Personal judgment in action to enforce mortgage or lien — When mortgage may be enforced.

  1. In an action to enforce a mortgage or lien, judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.
  2. In an action to enforce a mortgage or other lien, a sale of the property may be ordered without giving time to pay money or do other act.

History. C. C. 374, 376: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1. Construction.

This section expressly provides that in an action to enforce a lien, a judgment in rem and in personam may be rendered. Court may grant personal judgment and reserve for future adjudication, judgment in rem. Wooley v. Miller, 71 S.W. 856, 24 Ky. L. Rptr. 1542 , 1903 Ky. LEXIS 308 (Ky. Ct. App. 1903).

2. Satisfaction of Debt.

A lien creditor may not be compelled to accept the liened property in full satisfaction of the debt, where the property will not bring an amount equal to the debt even though this results from a general depreciation of prices for property. Federal Land Bank of Louisville v. Crombie, 258 Ky. 383 , 80 S.W.2d 39, 1935 Ky. LEXIS 173 (Ky. Ct. App. 1935).

3. Bad Faith of Bank.

Lower court committed reversible error by recognizing validity of deficiency judgment against mortgagor because mortgagor’s obligation to bank/mortgagee, was extinguished when bank, in breach of its duty of good faith and fair dealing, contracted with third parties to sell the mortgaged property during the foreclosure action and, in fact, ultimately sold the property for an amount which would have wholly satisfied the debt owed by mortgagor. Pearman v. West Point Nat'l Bank, 887 S.W.2d 366, 1994 Ky. App. LEXIS 135 (Ky. Ct. App. 1994).

Cited:

W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ); Sebastian v. Floyd, 585 S.W.2d 381, 1979 Ky. LEXIS 271 ( Ky. 1979 ); KeyBank N.A. v. Allen, 499 S.W.3d 693, 2016 Ky. App. LEXIS 144 (Ky. Ct. App. 2016).

Research References and Practice Aids

Cross-References.

Adverse possession, sale of land so held, KRS 372.070 .

Criminal prosecution, execution may issue for costs, when, KRS 453.020 .

Distraint, when superior to lien on property, KRS 383.080 .

Fines, execution may issue on, KRS 431.100 .

Illegal fee-bill, distress for, remedy, KRS 64.470 .

Imprisonment for debt, Const., § 18.

Insurance company, securities deposited by, may be subjected by judgment creditor, KRS 304.8-150 , 304.8-160 .

Judgments of Commonwealth, process on, KRS 135.130 .

Liquor traffic, sale of property for illegal use in, KRS 242.310 to 242.330 .

Police and firemen’s pension fund of cities of second class, exempt from execution, KRS 427.120 .

Public money, execution for collection of, false return on, fraud or interference with sale, KRS 135.100 .

Sale of property under order of court of continuous session, KRS 451.170 , 451.190 .

Tampering with public records, KRS 519.060 .

Teachers’ retirement benefits, exempt from execution, KRS 161.700 .

Kentucky Law Journal.

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Enforce Mortgage Lien Due to Default on Payment, Form 301.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Petrilli, Kentucky Family Law, Actions, § 17.1.

426.006. Other liens to be stated in action to enforce lien — Cross claim.

The plaintiff in an action for enforcing a lien on property shall state in his petition the liens held thereon by others, making them defendants; and may ask for and obtain a judgment for a sale of the property to satisfy all of said liens which are shown to exist, though the defendants fail to assert their claims. Such defendants shall not, however, be allowed to withdraw or receive any of the proceeds of such sale, until they have shown their right thereto by answer and cross claim, which shall be asserted as provided in the Rules of Civil Procedure.

History. C. C. 692: trans. and amend. Acts 1952, ch. 84, §§ 1, 27, effective July 1, 1953.

NOTES TO DECISIONS

1. Purpose.

The purpose of this section is to sell the entire title to the property, so that purchasers will be encouraged to bid at such sales, and a sacrifice of the property avoided. Bitzer v. Mercke, 111 Ky. 299 , 63 S.W. 771, 23 Ky. L. Rptr. 670 , 1901 Ky. LEXIS 208 ( Ky. 1901 ).

2. Construction.

This section must be read in connection with KRS 426.010 , 426.130 , 426.190 , 426.430 , 426.520 , 426.560 , 426.685 , 426.695 , 426.715 , and 451.180 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

3. Summons.

Where the plaintiff in an action to enforce a lien on land that was not indivisible stated the existence of a lien held by another, and made the other lienholder a defendant, and asked for a sale of the land to satisfy both liens, and the other lienholder filed a cross petition asserting his lien, process was not required to issue on the cross petition in order to authorize a sale of the land to satisfy both liens. Griffith v. Bluegrass Bldg. & Loan Ass'n, 108 Ky. 713 , 57 S.W. 486, 22 Ky. L. Rptr. 391 , 1900 Ky. LEXIS 94 ( Ky. 1900 ).

Where decedent’s administrator brought an action to settle estate and to sell real estate, including a tract of land conveyed to the decedent and his wife jointly, upon which a vendor’s lien was retained and vendor and the widow were made parties to the action and served with process and petition set up the lien of the vendor and then vendor filed a petition asserting his lien but no process thereon was served on the widow and land covered by the deed was ordered sold but did not bring enough to satisfy the debt. Several years later the widow brought a suit to set aside the commissioner’s deed and to recover a half interest in the property since the widow was served with process on the original petition, she was before the court for the purposes of the sale, and the judgment and other proceedings barred her right of recovery, it not being necessary that she should have been served with process on the petition of the vendor, since his lien was set up in the original petition and the vendor did not seek a personal judgment against the widow. Roberts v. Roberts, 180 Ky. 629 , 203 S.W. 523, 1918 Ky. LEXIS 115 ( Ky. 1918 ).

A summons on a pleading filed by a lienholder, and which was made a cross petition against the defendants, was necessary although no personal judgment was sought, where the cross plaintiff was not made a party to the original suit. Allen v. Sweeney, 185 Ky. 94 , 213 S.W. 217, 1919 Ky. LEXIS 245 ( Ky. 1919 ).

While it is true that a plaintiff in a cross petition must have a summons executed upon the defendant in the cross petition in order to obtain a person judgment, a judgment which gave the defendant lienholders only a lien upon property rather than a personal judgment against the property owners is valid. Lorton v. Ashbrook, 220 Ky. 830 , 295 S.W. 1027, 1927 Ky. LEXIS 614 ( Ky. 1927 ).

In an action to foreclose a mortgage lien, where intervening tax lienholders made claim to fund arising from the foreclosure sale but did not ask for personal judgment, summons was unnecessary on the petitions of the intervenors setting up their claim to the fund. Louisville Title Co. v. White Const. Co., 250 Ky. 212 , 62 S.W.2d 795, 1933 Ky. LEXIS 674 ( Ky. 1933 ).

Where a lienholder was made a defendant in an action by the wife against her husband to determine the ownership of certain realty, issuance of summons on the lienholder’s cross petition for sale of the property was not a prerequisite to the lienholder’s right to have the property sold and to receive its portion of the proceeds, since the cross petition did not ask for a personal judgment against the husband. Noel v. Noel, 307 Ky. 128 , 210 S.W.2d 140, 1947 Ky. LEXIS 1032 ( Ky. 1947 ).

4. Form of Petition.

In a petition to enforce a lien it is not necessary to state the exact amount due to other lienholders. McKibben v. Worthington's Ex'rs, 103 Ky. 356 , 45 S.W. 233, 20 Ky. L. Rptr. 61 , 1898 Ky. LEXIS 76 ( Ky. 1898 ).

4.5. Standing.

Mortgagee had first-party standing to contest an agreed judgment between a mortgagor and a purchaser of the mortgagor’s delinquent property tax liens because the mortgagee was a lienholder under KRS 426.006 and would suffer direct financial injury as the tax lien was superior under KRS 134.420(3); the amount of the tax lien was increased by the included attorney’s fees under KRS 134.452 , which the mortgagee contended were unreasonable. Tax Ease Lien Invs. 1 v. Commonwealth Bank & Trust, 384 S.W.3d 141, 2012 Ky. LEXIS 142 ( Ky. 2012 ).

5. Parties.

The holders of tax liens and mortgage liens may be joined as defendants and may enforce their liens in an action to enforce a public improvement lien. Hargis v. W. T. Congleton Co., 252 Ky. 192 , 66 S.W.2d 98, 1933 Ky. LEXIS 1011 ( Ky. 1933 ).

6. — “Defendant” Defined.

The meaning of the term “defendant” in KRS 426.530 refers to the owner of the property; junior mortgagees or lienholders are not included in the class of those entitled to redeem under KRS 426.530 . Kirklevington Assoc., Ltd. v. Kirklevington North Assoc., Ltd., 848 S.W.2d 453, 1993 Ky. App. LEXIS 35 (Ky. Ct. App. 1993).

7. — Necessary Parties.

The failure to make a lienholder a party to a suit to enforce a lien, and to bring him before the court, is a reversible error. Fisher v. Evans, 175 Ky. 300 , 194 S.W. 361, 1917 Ky. LEXIS 333 ( Ky. 1917 ). See also Fisher v. Maxwell Inv. Co., 206 Ky. 24 , 266 S.W. 902, 1924 Ky. LEXIS 272 ( Ky. 1924 ).

In an action to enforce a vendor’s lien, all lienholders should be made parties in order to avoid a multiplicity of suits and a sacrifice of property and to insure fairness in the sale and invite competition in the bidding. Dallas v. First Nat'l Bank, 200 Ky. 826 , 255 S.W. 835, 1923 Ky. LEXIS 200 ( Ky. 1923 ).

It was not error to allow a mortgagor to file a separate answer, counterclaim and cross petition against a purchaser of part of the mortgaged property who had asked to become a party to a foreclosure suit where the mortgagor asserted that the purchaser had not paid any money for the land because in this case a complete adjudication as to all liens against the property required that all lienholders be made parties. Barnett v. Howard, 267 Ky. 316 , 102 S.W.2d 44, 1937 Ky. LEXIS 321 ( Ky. 1937 ).

Under this section it is necessary to make a lienholder a party, but it is not incumbent to set out with particularity his lien. Jones v. Chipps, 296 Ky. 245 , 176 S.W.2d 408, 1943 Ky. LEXIS 140 ( Ky. 1943 ).

This section requires one seeking to enforce a lien to name other lienholders as defendants in the action; it is the responsibility of the defendant-lienholders to protect their interests in the property. Owens v. First Commonwealth Bank, 706 S.W.2d 414, 1985 Ky. App. LEXIS 707 (Ky. Ct. App. 1985).

Bank was given proper notice that a mortgagee had commenced a foreclosure action and that the bank had been named as a defendant as required by KRS 426.006 where a copy of the complaint and a civil summons were served on a local branch manager of the bank; the bank was served in accordance with CR 4.04(5) as it was reasonable to presume that the branch manager would know what to do with a civil summons served upon her as bank manager. PNC Bank, N.A. v. Citizens Bank of N. Ky., Inc., 139 S.W.3d 527, 2003 Ky. App. LEXIS 323 (Ky. Ct. App. 2003).

8. — Unsecured Creditor.

Mortgagee was not required to make a creditor who had no lien, a party to an action for the sale of property. McMurtry v. Montgomery Masonic Temple Co., 86 Ky. 206 , 5 S.W. 570, 9 Ky. L. Rptr. 541 , 1887 Ky. LEXIS 130 ( Ky. 1887 ).

9. Nonparty Lienholders.
10. — Rights in Property.

In an action to assert a mortgage lien upon real property which was dismissed by agreement between plaintiff and the mortgagor, and then was subsequently reinstated by petition, the court determined that a junior mortgagee should have been made a party to the petition reinstating the action, but the failure to do so did not prejudice his rights in the property. Karl v. Conner, 97 S.W. 1111, 30 Ky. L. Rptr. 238 (1906).

Where a lienholder brings suit for foreclosure of his lien and fails to make the holders of delinquent tax liens parties and the tax lienholders intervene before confirmation of the sale or distribution of the proceeds, the court may properly order the tax liens paid from the proceeds of the sale. Louisville Title Co. v. White Const. Co., 250 Ky. 212 , 62 S.W.2d 795, 1933 Ky. LEXIS 674 ( Ky. 1933 ).

11. Failure to Answer.

Defendant lienholders need not answer but they shall not be allowed to receive any proceeds of the sale until they have shown a right to do so by answer and cross petition. McKibben v. Worthington's Ex'rs, 103 Ky. 356 , 45 S.W. 233, 20 Ky. L. Rptr. 61 , 1898 Ky. LEXIS 76 ( Ky. 1898 ).

Where, on mortgage foreclosure, the owners of prior mortgages filed no answer asserting any lien, but were erroneously given a personal judgment against the mortgagor, and the priority of their mortgages was established, but the court subsequently made an order that they should not receive any of the proceeds until an answer was filed, the error was unavailable to the mortgagor. James v. Webb, 71 S.W. 526, 24 Ky. L. Rptr. 1382 (1903).

A judgment finding a senior mortgagee’s lien subordinate was invalid where in an action by a junior mortgagee to foreclosure there were no averments showing that the first mortgage had been paid or discharged or that it was inferior to the second mortgage even though the petition did call upon the senior mortgage holder to assert her claim or be barred and the senior mortgage holder failed to answer. Bank of Tollesboro v. W. T. Raleigh Co., 218 Ky. 516 , 291 S.W. 1039, 1926 Ky. LEXIS 121 ( Ky. 1926 ).

Where the plaintiff sought to attach money in the hands of a bus company transferee in order to satisfy a personal injury judgment the trial court could not foreclose the interest of mortgagees of the company in the same fund merely because they had failed to answer and they could assert their liens as long as the action was pending. Safety Motor Coach Co. v. Maddin's Adm'x, 266 Ky. 459 , 99 S.W.2d 183, 1936 Ky. LEXIS 673 ( Ky. 1936 ).

It was necessary for a second lienholder to answer and set out his lien in order to entitle the first lienholder to obtain a decree of sale to satisfy the liens against the property, although the second lienholder would not be allowed to receive or withdraw any of the proceeds of sale until he showed his right thereto by answer and cross petition. Jones v. Chipps, 296 Ky. 245 , 176 S.W.2d 408, 1943 Ky. LEXIS 140 ( Ky. 1943 ).

12. Satisfaction of Junior Lien.

A valid sale may be made to satisfy a junior lien which is due, although a prior lien thereon is not, if the liens are held by different persons and the sale is subject to prior lien. Fisher v. Maxwell Inv. Co., 206 Ky. 24 , 266 S.W. 902, 1924 Ky. LEXIS 272 ( Ky. 1924 ). See also Fisher v. Evans, 175 Ky. 300 , 194 S.W. 361, 1917 Ky. LEXIS 333 ( Ky. 1917 ).

Although a provision of the secured party’s security agreement with the debtor enabled it to pay liens and taxes on the collateral and charge same to debtor, the secured party’s security interest was extinguished and provisions of the security agreement became inoperative upon sale of the collateral at the judicial sale. Therefore, the secured party could not gratuitously pay the mechanic’s lienholder and charge same to the debtor. Owens v. First Commonwealth Bank, 706 S.W.2d 414, 1985 Ky. App. LEXIS 707 (Ky. Ct. App. 1985).

13. Void Sale.

Judgment for the sale of property to satisfy a lien asserted by cross petition upon which summons was not issued is void as to the cross petition plaintiff, where he was merely made a defendant to the original petition, without any statement as to whether he had a lien, and it is erroneous as to the original plaintiff, though he was adjudged to have a prior lien, and the property has not sold for more than enough to satisfy his claim. Mitchell v. Fidelity Trust & Safety-Vault Co., 47 S.W. 446, 20 Ky. L. Rptr. 713 , 1898 Ky. LEXIS 256 (Ky. Ct. App. 1898).

14. Statute of Limitations.

In an action to enforce a mortgage the statute of limitations as to liens ceased to run where the defendant filed a cross petition asserting an improvement lien even though no summons was issued on the cross petition. Ideal Sav., Loan & Bldg. Ass'n v. Park Hills, 281 Ky. 571 , 136 S.W.2d 748, 1940 Ky. LEXIS 64 ( Ky. 1940 ).

The filing of a cross petition seeking merely the enforcement of a lien within the prescribed period of limitation was sufficient to stop the running of the statute of limitations although no summons was issued on the cross petition. Fidelity & Casualty Co. v. Board of Regents, 287 Ky. 439 , 152 S.W.2d 581, 1941 Ky. LEXIS 514 ( Ky. 1941 ).

15. Improper Lien Extinguishment.

Trial court improperly confirmed a judicial sale without making it subject to a senior mortgage because, while an assignee and its predecessor failed to bring their claim in the foreclosure proceedings initiated by a junior mortgagee and therefore had a default judgment entered against them, the assignee’s presentation of its claim prior to the judicial sale was sufficient to prevent its senior mortgage from being extinguished by the junior mortgagee’s foreclosure action. Mortg. Elec. Registration Sys. v. MainSource Bank, 425 S.W.3d 892, 2014 Ky. App. LEXIS 32 (Ky. Ct. App. 2014).

Cited:

Barry v. Baker, 93 S.W. 1061, 29 Ky. L. Rptr. 573 (1906); Union Trust & Sav. Co. v. Marshall’s Adm’rs, 130 Ky. 206 , 113 S.W. 73, 1908 Ky. LEXIS 251 ( Ky. 1908 ); Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ); Swift & Co. v. Campbell, 360 S.W.2d 213, 1962 Ky. LEXIS 218 ( Ky. 1962 ); Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754, 1984 Ky. App. LEXIS 447 (Ky. Ct. App. 1984); Commonwealth, Revenue Cabinet v. Liberty Nat’l Bank, 858 S.W.2d 199, 1993 Ky. App. LEXIS 40 (Ky. Ct. App. 1993); KeyBank N.A. v. Allen, 499 S.W.3d 693, 2016 Ky. App. LEXIS 144 (Ky. Ct. App. 2016).

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Enforce Mortgage Lien Due to Default on Payment, Form 301.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.010. Execution against property may issue on personal judgment.

If a final judgment in personam is rendered in any court of record in this state for an ascertained sum of money, with interest and cost, or for either, an execution against property may issue thereon.

History. 1650.

NOTES TO DECISIONS

1. Construction.

This section must be read in connection with KRS 426.006 , 426.130 , 426.190 , 426.430 , 426.520 , 426.560 , 426.685 , 426.695 , 426.715 , and 451.180 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

2. Judgment.

Personal judgment against nonresident after constructive service of process was void, and not merely erroneous, and imparted no validity to execution. Roberts v. Stowers, 70 Ky. 295 , 1870 Ky. LEXIS 55 ( Ky. 1870 ) (decided under prior law).

There must be a judgment, order or decree to support an execution, otherwise it will be null and void and confer no authority upon officer. O'Conner v. Stone, 43 S.W. 483, 19 Ky. L. Rptr. 1929 (1897).

Where a judgment creditor responded to a judgment debtor’s motion for relief/new trial under CR 59(e), (f) and knew that no hearing or final determination had been made on the request, pursuant to KRS 426.010 , there was no final judgment supporting the creditor’s lien. Duvall v. Clay, 2003 Ky. App. Unpub. LEXIS 1074 (Ky. Ct. App. May 23, 2003).

Execution was issuable on final judgment which ordered and directed defendant to pay certain sum with interest from certain date, notwithstanding it did not direct that execution issue and reserved right to make further orders or judgments to effectuate it. Butler v. Jackson, 187 Ky. 555 , 219 S.W. 1082, 1920 Ky. LEXIS 165 ( Ky. 1920 ).

Where one party to a suit was required to pay the costs incurred in the suit this is not a judgment on which execution may issue. Casebolt v. Collinsworth, 219 Ky. 656 , 294 S.W. 181, 1927 Ky. LEXIS 421 ( Ky. 1927 ).

An agreed order of dismissal fixing liability for costs is not a final judgment on which execution can issue. Deskins v. Coleman, 286 Ky. 624 , 151 S.W.2d 751, 1941 Ky. LEXIS 315 ( Ky. 1941 ).

3. — Property Involved.

In an action to enforce notes and to foreclose a mortgage, a judgment ordering sale of the property and authorizing the issuance of execution was proper, if the execution was limited to property other than that ordered sold. Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

4. — Secured Obligation.

The mere fact that a personal judgment is entered on an obligation which is secured by a mortgage or otherwise does not prevent the enforcement of the judgment by an execution and levy upon the defendant’s property. Champion v. Bennett, 203 Ky. 393 , 262 S.W. 602, 1924 Ky. LEXIS 930 ( Ky. 1924 ).

5. — Commonwealth Property.

Commonwealth property may not be subjected to sale under execution to satisfy a debt against the Commonwealth. Commonwealth, Dep't of Highways v. Circuit Court, 365 S.W.2d 106, 1963 Ky. LEXIS 217 ( Ky. 1963 ).

6. — Alimony.

A judgment for alimony payable in monthly instalments and subject to further orders of the court is not enforceable by execution. Gerrein’s Adm’r v. Michie, 122 Ky. 250 , 28 Ky. L. Rptr. 1193 , 91 S.W. 252, 1906 Ky. LEXIS 27 ( Ky. 1906 ), overruled in part, Whitby v. Whitby, 306 Ky. 355 , 208 S.W.2d 68, 1948 Ky. LEXIS 569 (1948). See Ford v. Ford, 230 Ky. 56 , 18 S.W.2d 859, 1929 Ky. LEXIS 8 ( Ky. 1929 ).

An alimony award for a stated sum is a judgment upon which execution will be allowed. Harrison v. Harrison, 146 Ky. 631 , 143 S.W. 40, 1912 Ky. LEXIS 136 ( Ky. 1912 ).

7. — Reversal.

No execution could properly be issued upon a judgment which had been reversed. Commonwealth v. Shankes, 6 Ky. Op. 79, 1872 Ky. LEXIS 429 (Ky. Ct. App. Dec. 10, 1872) (decided under prior law).

8. Execution.
9. — Writ.
10. — — Procedure.

Where evidence offered in the stipulation of facts established only that a routine procedure existed for the sheriff to follow upon receipt of a writ of execution but the deputy signing the return writ could not recall having noticed the occupant of the dwelling, or having delivered a copy of the execution to the real property subject to levy, bank failed to offer the requisite quantum of proof to establish that a proper levy was made against debtor’s remainder interest in fee as required for creation of bank’s superior interest in the subject property. In re Wilson, 38 B.R. 940, 1984 Bankr. LEXIS 5875 (Bankr. W.D. Ky. 1984 ).

11. — Issuance.

The issuance of an execution upon a judgment is controlled by the recovering party. Hatfield v. Kentland Coal & Coke Co., 247 Ky. 825 , 57 S.W.2d 1000, 1933 Ky. LEXIS 458 ( Ky. 1933 ).

12. — Quashing.

Execution was quashed where clerk issued it without indorsing credit of sum paid and stated in judgment; plaintiff might, however, issue new execution giving proper credit. Craig v. Reardon, 2 Ky. 328 , 2 Ky. 389 , 1804 Ky. LEXIS 23 ( Ky. 1804 ) (decided under prior law).

Motions to quash executions ought to be made in reasonable time. M'Kinneys v. Scott, 4 Ky. 155 , 1808 Ky. LEXIS 168 ( Ky. 1808 ) (decided under prior law).

Executions on judgment for substantial sum should not have been quashed although there was variance of one (1) cent between judgment and execution, that variance being clearly clerical error. Sanders v. Kentucky Ins. Co., 7 Ky. 471 , 1816 Ky. LEXIS 128 ( Ky. 1816 ) (decided under prior law).

Execution upon judgment for restitution of land should not be quashed although execution contained statement, additional to statements in judgment, that named individual resided on land, since additional statement conferred no additional power on sheriff and did not prejudice parties. Graham v. Price, 10 Ky. 522 , 1821 Ky. LEXIS 208 ( Ky. 1821 ) (decided under prior law).

Execution should be quashed where it did not conform to judgment as regards parties. Commonwealth use of Slaughter v. Fisher, 25 Ky. 137 , 1829 Ky. LEXIS 49 ( Ky. 1829 ) (decided under prior law).

If motion had been made to quash execution and sale on ground that there was failure to give proper credit which was on the original judgment, it should have been granted. Williams v. John Gill, Jr. & Co., 29 Ky. 487 , 1831 Ky. LEXIS 223 ( Ky. 1831 ) (decided under prior law).

Execution should be quashed where there was variance between it and judgment as regards date for computing interest and amount of costs. Noe v. Conyers, 29 Ky. 514 , 1831 Ky. LEXIS 232 ( Ky. 1831 ) (decided under prior law).

Execution should not have been quashed, where judgment was recovered against John K. Weisiger and John Williams and execution was against John K. Weisiger and John J. Williams, variance being immaterial and a clerical error and objection to misnomer being too late after taking replevin bond. Jackson v. Weisiger, 4 Ky. 324 , 1809 Ky. LEXIS 44 ( Ky. 1809 ) (decided under prior law).

Proper forum to quash execution issued to another county would be in circuit court of county where judgment was recovered. Gorman v. Glenn, 139 Ky. 629 , 78 S.W. 873, 25 Ky. L. Rptr. 1755 , 1904 Ky. LEXIS 1 (Ky. Ct. App. 1904).

Execution was not void because it did not credit payment made thereon before issuance; it could have been quashed as to excess. Letton's Adm'r v. Rafferty, 154 Ky. 278 , 157 S.W. 35, 1913 Ky. LEXIS 56 ( Ky. 1913 ).

13. — Amendment.

Court should correct, but not quash, execution which was issued for too much. Todd v. M'Clanahan's Heirs, 24 Ky. 355 , 1829 Ky. LEXIS 285 ( Ky. 1829 ) (decided under prior law).

Even if clerk, on ascertaining mere mistake in issuance of execution, could himself correct, he could not authorize collecting officer to change the process in any way. Vance v. Vanarsdale, 64 Ky. 504 , 1866 Ky. LEXIS 178 ( Ky. 1866 ) (decided under prior law).

It was not error to permit execution issued in favor of “John O. Stovall’s Admr.,” to be amended to state name of administrator, thus making it conform to judgment. Stovall v. Hibbs, 32 S.W. 1087, 17 Ky. L. Rptr. 906 (1895).

Sheriff lacked authority to amend execution by inserting names of parties plaintiff; execution could be amended only in open court on motion after notice to parties affected. Sublett v. Gardner, 144 Ky. 190 , 137 S.W. 864, 1911 Ky. LEXIS 568 ( Ky. 1911 ).

Cited:

W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ).

Opinions of Attorney General.

A writ of execution may issue where no replevin bond has been executed. OAG 71-138 .

The writ of execution essentially directs the sheriff to go out in the county and discover, if possible, any property owned by the judgment debtor, levy on it, and sell it to liquidate the judgment sum awarded; the sheriff, upon making a levy on the property, has the right to take such property into immediate possession, or he may leave it in the possession of the debtor or any other person, but the person holding possession after the levy would hold it as a bailee of the sheriff. OAG 79-80 .

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insolvent Debtors, § 154.00.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.13.

426.020. Form of execution against property.

The form of an execution against property, varied to suit the particular case, may be in substance as follows: “The Commonwealth of Kentucky, to the sheriff of . . . . . . . . . . County, greeting: We command you that of the estate of A B, you cause to be made the sum of $ . . . . . which C D late in our . . . . . court hath recovered against him for debt, with interest thereon from the . . . . . day of . . . . . until paid; also the sum of $ . . . . . which to the said C D in the same court was adjudged for his costs in that suit expended, whereof he is convicted as appears to us of record, and that you have the said sums of money before our court on the . . . . . day of . . . . . , to render to the said C D his debt, interest and costs aforesaid and have then there this writ. Witness.”

History. 1651.

NOTES TO DECISIONS

1. Execution.

For purposes of interpreting KRS 413.090(1) “execution” could mean either the act of executing an order or the writ of execution itself, which was the formal document issued by the court authorizing a sheriff to levy upon the property of a judgment debtor, as described in KRS 426.020 . Since the term was not limited to writs of execution, but could include KRS 425.501(4) setting forth the procedure for obtaining garnishments, enforcement of judgments pursuant to KRS 426.381(2), judgment liens under KRS 426.720 , and attachments under KRS 425.526 , the judgment creditor was not time-barred under KRS 413.090(1)’s 15-year limitations period from collecting on a judgment it had against the judgment debtor, as it had pursued some of those enforcement techniques outside of a writ of execution that it had used more than 15 years earlier. Wade v. Poma Glass & Specialty Windows, Inc., 394 S.W.3d 886, 2012 Ky. LEXIS 199 ( Ky. 2012 ).

2. — Form.

Execution issued in designated firm name under which partners were trading was substantial compliance with judgment received by named individuals, copartners, trading under that name. Williams v. John Gill, Jr. & Co., 29 Ky. 487 , 1831 Ky. LEXIS 223 ( Ky. 1831 ) (decided under prior law).

Constable could justify taking of goods under execution directed to sheriff or any constable, where sheriff’s office was vacant and neither coroner nor constable was shown to be interested, since it was clerk’s duty to issue writ to proper officer referred to in law permitting court to appoint person to serve particular process and constable’s duty to proceed on writ regular on face. Epperson v. Graves, 11 Ky. Op. 423, 3 Ky. L. Rptr. 527 , 1882 Ky. LEXIS 122 (Ky. Ct. App. Jan. 21, 1882) (decided under prior law).

Cited:

W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ); In re Wilson, 38 B.R. 940, 1984 Bankr. LEXIS 5875 (Bankr. W.D. Ky. 1984 ).

Opinions of Attorney General.

The issuance of an execution is controlled by the recovering party, not by the circuit clerk. Thus, where the judgment debtor has insufficient personal property upon which execution can be had, the circuit clerk has no statutory authority to require the issuance of two executions, one for personalty and one for real estate; the one writ which the judgment plaintiff has procured (issued) will suffice. OAG 84-173 .

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Execution Against Property (KRS 426.020 ), Form 151.01.

Caldwell’s Kentucky Form Book, 5th Ed., Form of Execution Against Property, Form 154.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 151 Executions, § 151.syn.

426.030. Execution not to issue for ten days — Exception.

No execution shall issue on any judgment, unless ordered by the court, until after the expiration of ten (10) days from the rendition thereof.

History. 1653.

NOTES TO DECISIONS

1. Execution.
2. — Order of Court.

Execution issued by justice of peace who was also clerk of his court was issued by order of court. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897).

3. — Premature Issuance.

Even if execution was issued less than ten (10) days after judgment, such issuance was mere irregularity for which remedy was to quash. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897).

Under this section, an execution issued prior to the expiration of ten (10) days from the date of judgment, unless on order of court, is void. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

Unless done by order of the court, an execution issued on the day after the judgment was rendered is void. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

4. — Suspended Judgment.

Filing of motion and grounds for new trial had effect of suspending judgment, therefore execution issued the day after motion for new trial was overruled was premature, even though ten (10) days had elapsed since entry of verdict. Louisville v. Verst, 308 Ky. 46 , 213 S.W.2d 517, 1948 Ky. LEXIS 862 ( Ky. 1948 ).

Opinions of Attorney General.

The ten-day waiting period of this section would also apply to garnishments after judgment. OAG 71-270 .

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Form of Execution Against Property, Form 154.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 4th Ed., Executions, General Note.

426.035. Execution may issue until barred by limitation.

An execution may be issued upon a judgment at any time until the collection of it is barred by the statute of limitation, although no execution may have been previously issued within a year and a day.

History. C. C. 401: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1. Statute of Limitations.

A plea of the statute of limitations is not necessary in an action to enforce satisfaction of a judgment on a return of no property found, but to entitle plaintiff to recover he must allege and prove that the execution on which his action is based was issued before the judgment was barred by the statute of limitations. Gotee v. Graves, 153 Ky. 26 , 154 S.W. 386, 1913 Ky. LEXIS 767 ( Ky. 1913 ).

2. — Absence from State.

In determining whether the right to an execution on a judgment is barred by the 15 years’ statute of limitations, the time of defendant’s absence from the state since the last execution was issued, is to be deducted, as is done in determining whether an action to enforce the judgment is barred. Brittain v. Lankford, 110 Ky. 484 , 61 S.W. 1000, 22 Ky. L. Rptr. 1899 , 1901 Ky. LEXIS 99 ( Ky. 1901 ).

426.040. Return of execution.

  1. An execution against property by the levying officer shall be returnable to the court in which the action is pending within 30 days after levy but in no event more than 60 days after the execution is issued. Each court shall by an order of record appoint a monthly return day of executions.
  2. If an execution against property is satisfied the officer shall return thereon, in substance, “satisfied,” unless it be by the sale of property in which case this fact must be stated. If satisfied in part, he must state what part and why the residue was not satisfied. If levied and no sale was made for want of bidders, or if no property has been found, he must state the facts.

History. 1651: amend. Acts 1976, ch. 91, § 36.

NOTES TO DECISIONS

1. Purpose.

The purpose of this section is to speed the process of execution and to ensure that levies are not made under the authority of stale writs of execution. In re Baird, 55 B.R. 316, 1985 Bankr. LEXIS 4880 (Bankr. W.D. Ky. 1985 ).

2. Return of Execution.
3. — Form.

Return stating that levy was made upon land, describing the lot as “lot 19, in block 13, in Pineville, Ky.,” sufficiently recited the levy. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

4. — Discretion of Sheriff.

Sheriff need not wait for return day before returning execution when no property found. He has discretion in such matters. Rowan County Lumber Co. v. Kautz, 246 Ky. 732 , 56 S.W.2d 1, 1932 Ky. LEXIS 823 ( Ky. 1932 ).

5. — Duty of Sheriff.

When an officer received an execution, it may have been his duty to return it, if not void, even if he was not bound to levy it. Commonwealth v. Cull, 30 Ky. 149 , 1832 Ky. LEXIS 18 (Ky. Ct. App. 1832) (decided under prior law).

6. — Deputy Sheriff.

Deputy sheriff in making return of process should have signed name and official character of principal by himself as deputy. Humphrey's Ex'r v. Wade, 84 Ky. 391 , 1 S.W. 648, 8 Ky. L. Rptr. 384 , 1886 Ky. LEXIS 79 ( Ky. 1886 ) (decided under prior law).

Fact that returns were signed by deputy sheriff for the sheriff, and not in name of the sheriff by the deputy, did not invalidate levy. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897).

7. — Levy After Return Due.

Authority to levy an execution expires after the return day has passed, and any levy or sale made on same thereafter is void. Deskins v. Coleman, 286 Ky. 624 , 151 S.W.2d 751, 1941 Ky. LEXIS 315 ( Ky. 1941 ).

8. — Possession of Property.

Possession of property by sheriff who had levied execution thereon was not released by his return of the execution. Chicago Trust Co. v. Daniel Boone Coal Corp., 58 F.2d 302, 1930 U.S. Dist. LEXIS 1764 (D. Ky. 1930 ).

9. — Untimely Return.

This section is intended to require a timely return of execution in order to perfect a lien; thus, a return made after the 60-day period of this section is invalid under Kentucky law, and the underlying lien is therefore unperfected. In re Baird, 55 B.R. 316, 1985 Bankr. LEXIS 4880 (Bankr. W.D. Ky. 1985 ).

In order for a creditor to perfect the lien against the debtor’s property which arises at the time a writ of execution is issued and delivered to the levying officer, a valid levy must be made against the property and the levying officer must make an adequate return of execution within the period required by this section; failure to comply with this procedure will result in the judicial lien being unperfected. In re Baird, 55 B.R. 316, 1985 Bankr. LEXIS 4880 (Bankr. W.D. Ky. 1985 ).

10. — Presumption of Validity.

The law presumed that the sheriff complied with his duty and entered a sufficient levy where the execution under which the sale was made was lost. Greer v. Howard, 11 Ky. Op. 755, 4 Ky. L. Rptr. 350 , 1882 Ky. LEXIS 296 (Ky. Ct. App. Oct. 17, 1882) (decided under prior law).

Return of doubtful import should be construed so as to uphold officer’s action, since it is policy of law to uphold judicial sales. Scott's Ex'x v. Scott, 85 Ky. 385 , 3 S.W. 598, 9 Ky. L. Rptr. 363 , 1887 Ky. LEXIS 58 ( Ky. 1887 ) (decided under prior law).

Presumption obtained that officer did duty by making levy while execution was in force, notwithstanding return was silent as to making levy, where record did not show failure to make levy, but it appeared that sheriff sold land under execution. Greer v. Wintersmith, 85 Ky. 516 , 4 S.W. 232, 9 Ky. L. Rptr. 96 , 1887 Ky. LEXIS 71 ( Ky. 1887 ) (decided under prior law).

11. — Improper Date.

Execution made returnable more than statutorily prescribed time after teste was not void, but merely voidable by party affected. Wilson v. Huston, 7 Ky. 332 , 1816 Ky. LEXIS 42 ( Ky. 1816 ) (decided under prior law).

Mistake of clerk in directing that execution be returned on first day of month instead of first Monday of month as prescribed by statute did not affect its validity. Frazer v. Merrell, 8 Ky. Op. 33, 1875 Ky. LEXIS 53 (Ky. Ct. App. Sept. 3, 1875) (decided under prior law).

Execution fixing return day at time less than statutorily prescribed was not void; sheriff’s duty was to make levy under it. Goode's Adm'r v. Miller, 78 Ky. 235 , 1879 Ky. LEXIS 92 ( Ky. 1879 ) (decided under prior law).

12. — Action by Coroner.

Return of coroner, “no property” upon execution directed to sheriff was nullity, although there was at time no sheriff in county, since execution could be handled only by officer to whom it was directed, hence, action to subject land to payment of judgment could not be founded on that return. Johnson v. Elkins, 90 Ky. 163 , 13 S.W. 448, 11 Ky. L. Rptr. 967 , 1890 Ky. LEXIS 60 ( Ky. 1890 ) (decided under prior law).

13. — Date of Levy.

Indorsement on execution substantially stated that execution was levied on day it reached officer’s hands, when it showed delivery to him the day after it was issued and that he indorsed it “Levied this execution.” Scott's Ex'x v. Scott, 85 Ky. 385 , 3 S.W. 598, 9 Ky. L. Rptr. 363 , 1887 Ky. LEXIS 58 ( Ky. 1887 ) (decided under prior law).

14. — Memorandum of Sale Transactions.

Successful bidder at execution sale who failed to complete bid was not liable for difference between his bid and price obtained at resale, where sheriff did not make necessary memorandum in writing, although he made written memorandum which was not incorporated in his return upon execution. Linn Boyd Tobacco Warehouse Co. v. Terrill, 76 Ky. 463 , 1877 Ky. LEXIS 91 ( Ky. 1877 ) (decided under prior law).

15. — Sale of Land.

Although it is sheriff’s duty in his return to give general description of land sold, name of purchaser, and procedure taken, his omissions or delinquencies in these respects will not affect purchaser, whose rights rest upon valid judgment and execution. Reid v. Heasley, 39 Ky. 324 , 1840 Ky. LEXIS 23 ( Ky. 1840 ).

Sale of land by sheriff, when proper return, report or memorandum in writing was made by him, did not come within the statute of frauds. Linn Boyd Tobacco Warehouse Co. v. Terrill, 76 Ky. 463 , 1877 Ky. LEXIS 91 ( Ky. 1877 ) (decided under prior law).

16. — Designation of Property.

Return showing levy on 3,000 bricks in kiln containing much greater number without further designation meant that that number to be taken indiscriminately from kiln opened in usual manner had been levied on. Hill v. Harris, 49 Ky. 120 , 1849 Ky. LEXIS 38 ( Ky. 1849 ) (decided under prior law).

17. — Proof of Levy.

Returns of levy and sale of land, indorsed as levied on certain date before return day, being made more than year following levy and sale and after sheriff had gone out of office, were prima facie evidence of levy and sale, but impeachable by extrinsic evidence. McBurnie v. Overstreet, 47 Ky. 300 , 1847 Ky. LEXIS 172 ( Ky. 1847 ) (decided under prior law).

In action by sheriff for conversion of property on which he had allegedly made levy, his return stating that he had levied on the property was admissible in his behalf. Williams v. Herndon, 51 Ky. 484 , 1851 Ky. LEXIS 101 ( Ky. 1851 ) (decided under prior law).

When sheriff levies an execution he should state facts on writ and sign it, and it is evidence against him as to what he has done. Commonwealth for Tiffany v. Hurt, 67 Ky. 64 , 1868 Ky. LEXIS 79 ( Ky. 1868 ) (decided under prior law).

If sheriff’s return of levy upon and sale of land can be impeached at all, it must be by clear and convincing testimony. Commonwealth v. Jackson, 73 Ky. 424 , 1874 Ky. LEXIS 69 ( Ky. 1874 ) (decided under prior law).

Although sheriff should indorse his levy on the execution and sign it at the time it is made, yet levy may be proved by parol evidence, especially where it is not inconsistent with the return. Greer v. Howard, 11 Ky. Op. 755, 4 Ky. L. Rptr. 350 , 1882 Ky. LEXIS 296 (Ky. Ct. App. Oct. 17, 1882) (decided under prior law).

18. — Proof of Payment.

Statement by officer upon his return of execution that he paid the money to plaintiff, not being in response to command of writ, is not competent evidence of payment. Walker v. McKnight, 54 Ky. 467 , 1854 Ky. LEXIS 89 ( Ky. 1854 ) (decided under prior law).

19. — Plaintiff’s Orders.

Although sheriff was not responsible for failing to return execution if he acted under plaintiff’s orders, he must have made out this defense by evidence. Commonwealth for Tiffany v. Hurt, 67 Ky. 64 , 1868 Ky. LEXIS 79 ( Ky. 1868 ) (decided under prior law).

20. — Amendment.

Amendment of return to show date when sheriff enclosed execution and return to be sent to other county from which it issued should not be permitted, since it is not sheriff’s duty to mention time of enclosing return to be sent to other county, and amendment would permit him to make return evidence for himself. Wilson v. Huston, 7 Ky. 332 , 1816 Ky. LEXIS 42 ( Ky. 1816 ) (decided under prior law).

Sheriff who levied and returned execution during term of office could amend return after he left office, notwithstanding no statute specifically permitted such amendment. Newton v. Prather, 62 Ky. 100 , 1863 Ky. LEXIS 32 ( Ky. 1863 ) (decided under prior law).

If defendant should seek to avoid execution against property on ground that it fixed return day at time less than statutorily prescribed, court should direct sheriff to amend it to conform to statute. Goode's Adm'r v. Miller, 78 Ky. 235 , 1879 Ky. LEXIS 92 ( Ky. 1879 ) (decided under prior law).

21. — Quashing.

Return of execution showing satisfaction of judgment could be quashed by execution-creditor, where no satisfaction had actually been made, so that another execution might be issued. Newman v. Hazelrigg, 64 Ky. 412 , 1866 Ky. LEXIS 163 ( Ky. 1866 ) (decided under prior law).

22. Execution Sale.

Pursuant to KRS 426.340 , a sheriff’s failure to conduct a public sale promptly after levying upon the subject property constituted a neglect of his official duty and while neither creditor nor debtor can be held responsible for costs arising out of sheriff’s failure to conduct a timely sale of the seized property, neither was the sheriff liable for these costs under KRS 426.350 , since this section requires only that a sheriff file a written return advising of the progress of his levy and does not require the completion of the execution sale. Nesler v. Hailey, 898 S.W.2d 536, 1995 Ky. App. LEXIS 107 (Ky. Ct. App. 1995).

Cited:

W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ).

Opinions of Attorney General.

A sheriff who has collected money under an execution must pay it over to the execution creditor or his attorney or to any other person having his written authority on due demand, and he has no right to delay such payment of money to the person entitled to it when demand is made prior to the return date, since the purpose of the return date is merely to give the officer sufficient time to find property which will satisfy the execution and make his return thereon. OAG 73-313 .

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Execution Against Property (KRS 426.020 ), Form 151.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

426.050. Issuance of second or joint executions.

If an execution against property is issued and the plaintiff desires to take out another at his own cost, the clerk may issue it although the previous execution has not been returned. If the execution is returned in whole or in part not satisfied, a new one may issue. On a joint judgment against several persons the execution must be joint.

History. 1652.

NOTES TO DECISIONS

1. Joint Execution.

Execution must be joint where it is issued upon joint judgment against several, and hence execution against one (1) of two (2) joint judgment debtors, being in direct violation of statute, conferred no authority upon sheriff to take replevin bond. Tanner v. Grant, 73 Ky. 362 , 1874 Ky. LEXIS 59 ( Ky. 1874 ) (decided under prior law).

Execution under KRS 412.090 allowing surety who has paid judgment to have it assigned and execution issued against principal for whole or against any of cosureties for their share, is execution to this section, since such execution could not be joint. Sanders & Walker v. Herndon, 122 Ky. 760 , 93 S.W. 14, 29 Ky. L. Rptr. 322 , 1906 Ky. LEXIS 101 ( Ky. 1906 ).

2. — Separate Judgments.

Joint execution against judgment debtors was unauthorized, where there were separate judgments in same suit at different terms of court in favor of separate judgment creditors, and clerk was unauthorized to unite judgments and issue single execution for aggregate amount. Merchie v. Gaines, 44 Ky. 126 , 1844 Ky. LEXIS 88 ( Ky. 1844 ) (decided under prior law).

3. Separate Recoveries Against Defendant.

Where judgment was that different plaintiffs, properly joined in single action, recover against same defendant separate and distinct sums, a single execution for the separate sums due the different plaintiffs respectively was not invalid, although a single execution upon separate judgment would have been void or defective. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

4. Several Liability.

Assuming this section would apply to an execution out of a federal court, a several execution issued by federal court against one of national bank directors, against whom judgment had been rendered under federal statute imposing several liability, did not violate this section. Bohmer v. Bensinger, 280 Ky. 382 , 133 S.W.2d 534, 1939 Ky. LEXIS 137 ( Ky. 1939 ).

5. Issuance of Execution.
6. — Discretion of Creditor.

Where judgment was recovered against both lessors and lessee of coal lands, lessors, who were codefendants, could not require judgment creditors to issue execution against lessee, other codefendant, since issuance of execution was within discretion of judgment creditor without authority of codefendants to participate. Davis v. Kentland Coal & Coke Co., 247 Ky. 642 , 57 S.W.2d 542, 1933 Ky. LEXIS 438 ( Ky. 1933 ).

Where a judgment creditor and debtor agree that certain property levied on be sold and that the sale of other property levied on be deferred and the creditor instructs the sheriff pursuant to this agreement, a joint debtor under the judgment has no power to instruct the sheriff otherwise. Hatfield v. Kentland Coal & Coke Co., 247 Ky. 825 , 57 S.W.2d 1000, 1933 Ky. LEXIS 458 ( Ky. 1933 ).

7. — Death of Debtor.

Execution was void as to deceased judgment debtor and valid only against survivors, where judgment was recovered against several defendants and decedent had been dead for more than 15 years before effort was made to revive judgment against personal representatives, and hence action upon it was barred as against him by subdivision (1) of KRS 413.090 . Peoples' Bank of Kentucky's Assignee v. Barbour, 124 Ky. 539 , 99 S.W. 608, 30 Ky. L. Rptr. 712 , 1907 Ky. LEXIS 209 ( Ky. 1907 ).

Weight of authority is that execution on judgment after death of single defendant is void. Peoples' Bank of Kentucky's Assignee v. Barbour, 124 Ky. 539 , 99 S.W. 608, 30 Ky. L. Rptr. 712 , 1907 Ky. LEXIS 209 ( Ky. 1907 ).

Where joint judgment was recovered against two (2) defendants, execution against surviving defendant, after death of other, was not void under this section and KRS 426.553 . Letton's Adm'r v. Rafferty, 154 Ky. 278 , 157 S.W. 35, 1913 Ky. LEXIS 56 ( Ky. 1913 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

426.060. Order of property sold when joint execution issued against personal representative, heir and devisee.

When an execution is issued jointly against a personal representative, an heir and a devisee, or any two (2) of them, the officer in whose hands it is placed for collection shall sell, first, the estate in the hands of the personal representative; second, the estate descended to the heir; and third, the estate devised. The defendants may, in writing, direct the sale to take place in any order they desire.

History. 1654.

426.070. Executions of inferior courts. [Repealed.]

Compiler’s Notes.

This section (1655) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

426.080. Counties to which executions may issue — Liability for wrongful issuance.

  1. No execution against property shall issue to any other county than that in which the judgment was rendered, or that in which the defendant resides, until execution has issued to one of the counties named and has been returned endorsed by the proper officer that no property was found, as to all or part thereof. However, if the plaintiff or his agent or attorney makes and files with the clerk of the court in which the judgment was rendered an affidavit stating that the defendant in the judgment has not sufficient property subject to execution in the county in which the judgment was rendered, or in the county in which he resides, to satisfy the judgment, execution shall issue to any or as many counties as the plaintiff directs.
  2. The plaintiff shall be liable to the defendant for any damage he sustains by the plaintiff’s procuring an execution to issue wrongfully under the provisions of KRS 426.080 to 426.110 .

History. 1656.

NOTES TO DECISIONS

1. Presumption of Proper Execution.

Presumption that officers complied with practice under KRS 426.080 and this section obtains so as to sustain complaint which merely alleged that sheriff of county to which execution was sent returned it to clerk of other county from which it had issued. Mann Bros. v. Ball, 230 Ky. 129 , 18 S.W.2d 946, 1929 Ky. LEXIS 27 ( Ky. 1929 ).

2. Affidavit.

Since word “or” was used in disjunctive sense in law that provided what counties execution could issue, affidavit stating that debtor had no property in county where judgment was recovered, authorized execution to another county before return of execution, as against contention that affidavit must show nonexistence of property both in that county and in county where he allegedly resided. Vance's Adm'x v. Gray & Saffell, 72 Ky. 656 , 1873 Ky. LEXIS 20 ( Ky. 1873 ) (decided under prior law).

Even if deputy clerk of county from which execution issued failed to preserve or note filing of affidavit made under this section, execution was properly issued to another county, and its levy created lien upon land. Durham v. Farmers' Bank & Trust Co., 213 Ky. 208 , 280 S.W. 962, 1926 Ky. LEXIS 481 ( Ky. 1926 ).

This section does not require clerk to make notation on record of filing of affidavit, but only requires that affidavit be filed. Durham v. Farmers' Bank & Trust Co., 213 Ky. 208 , 280 S.W. 962, 1926 Ky. LEXIS 481 ( Ky. 1926 ).

3. — Presumption of Receipt.

Presumption that clerk, who issued execution to county other than that where judgment was rendered or defendant resided, received proper affidavit before doing so, was not overcome by answer merely alleging that no execution had been issued to county where judgment was recovered. Gorman v. Glenn, 139 Ky. 629 , 78 S.W. 873, 25 Ky. L. Rptr. 1755 , 1904 Ky. LEXIS 1 (Ky. Ct. App. 1904).

4. Invalid Execution.
5. — Effect on Sale.

As an execution can go beyond the county in some cases, the sheriff and all purchasers may assume that it is legally sent and act accordingly, and if it be thereafter found that it was improperly sent, the title sold under it should not be disturbed. Cox v. Nelson, 17 Ky. 94 , 1824 Ky. LEXIS 153 ( Ky. 1824 ). See M'Connell v. Brown, 21 Ky. 478 , 1827 Ky. LEXIS 192 ( Ky. 1827 ) (decided under prior law).

Even if execution was directed to wrong county this would not have made sale void. Young v. Smith, 49 Ky. 293 , 1850 Ky. LEXIS 93 ( Ky. 1850 ) (decided under prior law).

Sale under execution issued contrary to this section is not void, officer receiving such process should obey it although it may be set aside by defendant. Mitchell v. Fidelity Trust & Safety Vault Co., 67 S.W. 263, 24 Ky. L. Rptr. 62 (1902).

6. — Authority of Sheriff.

Execution, even if it could be quashed in motion directly made by defendant where improperly issued to county other than one where it was obtained, was authority to sheriff to levy and sell, for sheriff was to look to command of writ, and not to look behind it or inquire into the steps which the clerk took prior to the issuing of the execution. Ringos v. Ward, 41 Ky. 127 , 1841 Ky. LEXIS 109 ( Ky. 1841 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Copy of clerk’s entry in execution book, as evidence in proceeding against officer, KRS 422.020 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

426.090. Sheriff not required to leave county to return.

A sheriff shall not be required to go out of his county to return an execution in a civil case. He shall, if the plaintiff has no known agent or attorney in the county, keep a copy and mail the execution, with the return thereon, to the clerk of the court which issued it. When so sent in proper time and manner, the officer shall not be liable.

History. 1657.

426.100. Plaintiff may designate agent to receive money.

When an execution is placed in the hands of an officer for collection, in a county in which the plaintiff does not reside, the plaintiff may, by endorsement on the execution, name an agent in the county to which the execution is directed, who may receive and receipt for the money collected.

History. 1658.

426.110. Execution from another county levied on land — Duty of sheriff and clerk.

Where an execution issued in one county is sent to another county where land is levied upon, the sheriff levying the execution shall deliver it to the clerk of the circuit court in his county, who shall record the same as executions are now required to be recorded. After recording it, the clerk shall deliver the execution to the sheriff, who shall return it to the office of the court where it was issued.

History. 1659.

NOTES TO DECISIONS

1. Presumption of Proper Execution.

Presumption that officers complied with practice under KRS 426.080 and this section obtains so as to sustain complaint which merely alleged that sheriff of county to which execution was sent returned it to clerk of other county from which it had issued. Mann Bros. v. Ball, 230 Ky. 129 , 18 S.W.2d 946, 1929 Ky. LEXIS 27 ( Ky. 1929 ).

2. Levy of Execution.

Levy of execution upon unencumbered land in county other than that from which execution issued did not require equitable action to enforce the lien by sale, since, if sheriff has time to make sale before return date he should do so, or if he lacks time he should return process to office from which it issued, and plaintiff may obtain writ of venditioni exponas pursuant to KRS 426.440 . Brownsville Auto Co. v. Peaslee Gaulbert Co., 242 Ky. 519 , 46 S.W.2d 1088, 1932 Ky. LEXIS 313 ( Ky. 1932 ) (decided under prior law).

3. Execution Sale.
4. — Failure to Record.

Where land was sold in one (1) county under an execution issued from another prior to the statute of 1878, requiring the execution and return to be recorded in the county where the land is situated, a subsequent purchaser from the execution debtor could not be regarded as an innocent purchaser. Poor v. Hudson, 11 Ky. Op. 758, 4 Ky. L. Rptr. 349 , 1882 Ky. LEXIS 297 (Ky. Ct. App. Oct. 17, 1882) (decided under prior law).

Lien of execution issued from county where judgment was rendered to sheriff of another county was not invalidated by sheriff’s failure to record it in other county, as against purchaser who bought the land between date of the levy and the sale under execution. Soaper v. Howard, 85 Ky. 256 , 3 S.W. 161, 8 Ky. L. Rptr. 937 , 1887 Ky. LEXIS 41 ( Ky. 1887 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Fees of clerk, KRS 64.012 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.120. Defendant’s estate bound by execution from receipt by officer — Time received to be noted — Priority — Apportionment.

  1. An execution against property shall bind the estate of the defendant only from the time of its delivery to the proper officer to execute. The officer to whom the execution is delivered shall, on receipt of it, endorse thereon the day, month, year and time of day of its receipt by him.
  2. If two (2) or more executions are delivered to the officer on the same day against the same person, he shall satisfy that one first which first comes into his hands.
  3. If two (2) or more executions come to an officer’s hands at the same time and he is unable to make the amounts thereof, he shall apportion the sum made among the several executions so coming to his hands according to their amounts.

History. 1660, 4571.

NOTES TO DECISIONS

Analysis

1. Creation of Lien.

In Kentucky creditor obtained lien upon debtor’s property by delivery of execution to sheriff and this lien was as absolute before levy as it was afterwards. Lessee of Waller v. Best, 44 U.S. 111, 11 L. Ed. 518, 1845 U.S. LEXIS 426 (U.S. 1845) (decided under prior law).

Lien of first execution may be prolonged and given uninterrupted continuity by delivery of successive executions to officer before, or on same day as, return or expiration of prior execution. Hood v. Winsatt, 40 Ky. 208 , 1841 Ky. LEXIS 12 ( Ky. 1841 ) (decided under prior law).

Levy, sale and conveyance connect themselves with delivery of execution to officer so as to form single transaction, which as regards passage of title from debtor, dates from first act which gave lien. Halley v. Oldham, 44 Ky. 233 , 1844 Ky. LEXIS 110 ( Ky. 1844 ) (decided under prior law).

Effect of statutory provision making execution bind estate of defendant from time of its delivery to officer is to create lien for its payment from that time. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

The difference between the lien before levy and that after levy would seem to be that in the one case it is general and in the other it is specific. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

Execution upon judgment in action by state against sheriff and surety on his bond created lien on surety’s property only from time execution was delivered to officer, and hence was inferior to mortgage previously given by surety, notwithstanding action had been commenced before mortgage was given, where state elected to take execution instead of adjudication of lien under KRS 135.100 . Johnson v. Catron, 108 Ky. 568 , 57 S.W. 13, 22 Ky. L. Rptr. 275 , 1900 Ky. LEXIS 81 ( Ky. 1900 ).

A lien was created when executions were placed in the hands of an officer. Webster v. Industrial Acceptance Corp., 234 Ky. 613 , 28 S.W.2d 959, 1930 Ky. LEXIS 237 ( Ky. 1930 ).

Under this section a lien was created on the property of the execution debtor at the time the execution was issued by the clerk and this lien continued so long as the execution remained alive in the hands of the sheriff. McKenzie v. Commonwealth, 373 S.W.2d 595, 1963 Ky. LEXIS 166 ( Ky. 1963 ).

A lien is not perfected unless the officer made a levy and took actual or constructive possession, or exercised some control over the property. W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ).

2. — Duty of Sheriff.

The duties of the sheriff are absolute. W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ).

3. — Failure to Appraise and Inventory.

Where levy was made upon debtor’s personal property and indorsed upon execution, lien which arose when execution was delivered to officer continued to exist notwithstanding officer neglected to have property appraised and inventoried. Richart v. Goodpaster, 116 Ky. 637 , 76 S.W. 831, 25 Ky. L. Rptr. 889 , 1903 Ky. LEXIS 240 ( Ky. 1903 ).

4. — Subsequent Bankruptcy.

Where state court, by delivery of execution to sheriff, had acquired jurisdiction over defendant’s property prior to appointment of receiver for defendant by federal court, receiver committed wrongful act entitling execution creditor to have receiver pay amount due on execution, when receiver, before he or sheriff had actually taken possession of defendant’s property, notified sheriff not to levy and thus prevented collection of execution. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

A lien obtained against a bankrupt by the levy of execution on his property is not automatically nullified by an adjudication in bankruptcy and in the absence of an order issued by the bankruptcy court nullifying the lien created by this section, staying the sale or enjoining the proceedings under the execution, there is no legal excuse not to proceed with the sale. McKenzie v. Commonwealth, 373 S.W.2d 595, 1963 Ky. LEXIS 166 ( Ky. 1963 ).

5. — Priority of Rights.

Levy of execution upon land gave execution creditor prior lien over rights acquired under partnership agreement between debtors and another, whereby coal rights in land were acquired by the other man who subsequently assigned them to third party, where neither partnership agreement nor assignment was recorded pursuant to KRS 382.270 . Mann Bros. v. Ball, 230 Ky. 129 , 18 S.W.2d 946, 1929 Ky. LEXIS 27 ( Ky. 1929 ).

Where execution was delivered to officer with directions to hold it for further instructions, and chattel mortgage was given by debtor while execution was so held, sale under subsequent levy of execution was properly made subject to chattel mortgage. Hood v. Pope, 233 Ky. 749 , 26 S.W.2d 1043, 1930 Ky. LEXIS 656 ( Ky. 1930 ).

6. — Delay in Execution.

Delay of about two years in enforcing levy of execution upon land should be treated as waiver or abandonment of it as against one who acquired land even with knowledge of the levy. Cook v. Clemens, 87 Ky. 566 , 9 S.W. 820, 10 Ky. L. Rptr. 604 , 1888 Ky. LEXIS 115 ( Ky. 1888 ) (decided under prior law). See Deposit Bank of Cynthia v. Berry's Adm'r, 65 Ky. 236 , 1867 Ky. LEXIS 63 ( Ky. 1867 ); Owens v. Patteson, 45 Ky. 488 , 1846 Ky. LEXIS 43 ( Ky. 1846 ) (decided under prior law).

Levy of execution and its lien were not destroyed by delay of about four years in enforcing it, where about two years after sheriff returned execution without releasing it, creditor complied with subsequently enacted KRS 382.450 by filing notice, which was constructive notice to purchaser who bought the land about two years after its filing. Park v. McReynolds, 111 Ky. 651 , 64 S.W. 517, 23 Ky. L. Rptr. 894 , 1901 Ky. LEXIS 239 ( Ky. 1901 ).

Although prior to adoption of KRS 382.450 requiring filing of notice of issuance and levy of execution, delay in acting upon execution of nearly three years between its issuance and acquirement of debtor’s land by bona fide purchaser would have defeated execution creditor’s rights, since adoption of that law execution creditor need not be as diligent as formerly. Donacher v. Tafferty, 147 Ky. 337 , 144 S.W. 13, 1912 Ky. LEXIS 231 ( Ky. 1912 ).

Lien of execution was not released by delay of nonaction thereon for nearly three years between its issuance and time when bona fide purchaser acquired debtor’s land, where execution creditor had filed notice pursuant to KRS 382.450 that execution had been issued. Donacher v. Tafferty, 147 Ky. 337 , 144 S.W. 13, 1912 Ky. LEXIS 231 ( Ky. 1912 ).

7. — Subsequent Purchaser.

Execution created lien upon real estate, good as against purchasers, upon delivery to sheriff, provided lis pendens notice was filed pursuant to KRS 382.450 . Low v. Skaggs, 105 S.W. 439, 31 Ky. L. Rptr. 1292 (1907).

At moment when execution against debtor was issued and delivered to sheriff, it became lien on life estate of debtor in land and bound subsequent purchaser who concededly had notice of it. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

Where purchaser of oil and gas rights in land had actual knowledge of judgment and of judgment creditor’s intention to enforce it by execution, in addition to lis pendens notice, the conveyance should not operate to defeat creditor’s attachment lien on the land including all oil, gas, and other minerals therein. Fannin's Ex'r v. Haney, 283 Ky. 68 , 140 S.W.2d 630, 1940 Ky. LEXIS 277 ( Ky. 1940 ).

8. — Return of Execution.

Where creditor had delivered executions to sheriff which had been returned unsatisfied, execution against same debtor which another creditor delivered to sheriff should have been satisfied before still another execution which first mentioned creditor later delivered to sheriff was paid, since first mentioned executions, which had been returned unsatisfied and were extinct, did not preserve lien in favor of first mentioned creditor. Tabb v. Harris, 7 Ky. 29 , 1815 Ky. LEXIS 25 ( Ky. 1815 ) (decided under prior law).

A lien created by execution in an officer’s hands for levy ceased whenever the right to levy ceased or was voluntarily suspended by the creditor, therefore, a lien ceased if the execution was returned and a day passed before the delivery of another execution to an officer. Hood v. Winsatt, 40 Ky. 208 , 1841 Ky. LEXIS 12 ( Ky. 1841 ) (decided under prior law).

Where return showed that parties had agreed that execution be stayed, the levy ceased and the property was released from its lien, since the execution of the process was stopped and continuation of levy would be inconsistent with ending the execution. Eldridge v. Chambers, 47 Ky. 411 , 1848 Ky. LEXIS 92 ( Ky. 1848 ) (decided under prior law).

9. — Injunction Against Execution.

Lien of execution issued against debtor had ceased at time of sale under execution, where proceedings under execution had been suspended by injunction. Mason's Ex'rs v. Holmes & Gill, 7 Ky. 263 , 1815 Ky. LEXIS 148 ( Ky. 1815 ) (decided under prior law).

Injunction although wrongfully obtained arrested execution, released levy and discharged lien. Lockridge v. Biggerstaff, 63 Ky. 281 , 1865 Ky. LEXIS 67 ( Ky. 1865 ) (decided under prior law).

10. — Death of Creditor.

Execution abates by death of execution creditor after it has been delivered to sheriff, but before it has been levied or replevied, unless law gives debtor privilege of replevying debt and he should not be deprived of right by death of creditor to whom he would give bond. Wagnon v. M'Coy's Ex'r, 5 Ky. 198 , 1810 Ky. LEXIS 85 ( Ky. 1810 ) (decided under prior law).

Title vested in sheriff under levy in creditor’s lifetime was not divested by creditor’s subsequent death before sale, although levy might have been avoided by execution debtor, if judgment was revived in name of creditor’s personal representative so that debtor could give replevin or sale bond sheriff could proceed, in name of new party, to sell the property. Kennedy v. Holloway's Adm'rs, 29 Ky. 321 , 1831 Ky. LEXIS 179 ( Ky. 1831 ) (decided under prior law).

Death of execution creditor after levy caused abatement of execution, so that scire facias to have judgment of revivor in name of proper representative could be maintained. Huey's Adm'r v. Redden's Heirs, 33 Ky. 488 , 1835 Ky. LEXIS 148 ( Ky. 1835 ) (decided under prior law).

11. — Death of Debtor.

Lien created by levy of execution on land of debtor in his lifetime was not discharged by his death before sale, and although sale after his death was void, the lien might still be enforced in equity like other priorities against his estate. Burge's Adm'r v. Brown, 68 Ky. 535 , 1869 Ky. LEXIS 46 ( Ky. 1869 ). See Holeman's Ex'r v. Holeman's Heirs, 65 Ky. 514 , 1866 Ky. LEXIS 194 ( Ky. 1866 ) (decided under prior law).

12. — Removal of Property.

If creditor delivered execution to officer of one county and debtor thereafter removed the property to another state, but brought it back before execution was returned, lien was not destroyed by temporary absence. Clagget v. Foree, 31 Ky. 428 , 1833 Ky. LEXIS 110 ( Ky. 1833 ) (decided under prior law).

Creditor’s lien obtained by delivery of execution to officer of one county was not lost by removal of the property to another county in which second execution was delivered to officer of other county while first execution was still in force. Hood v. Winsatt, 40 Ky. 208 , 1841 Ky. LEXIS 12 ( Ky. 1841 ) (decided under prior law).

Lien, which was created upon personal property of execution debtor when execution was delivered to officer, was not lost by removal of property to another county, and purchasers, immediate and remote, in other county, took subject to lien. Mitchell v. Ashby, 78 Ky. 254 , 1880 Ky. LEXIS 5 ( Ky. 1880 ) (decided under prior law).

13. — Priority of Liens.

Between execution creditors there was no priority of lien other than that which was secured by levy. Million v. Commonwealth, 40 Ky. 310 , 1841 Ky. LEXIS 43 ( Ky. 1841 ) (decided under prior law).

If executions are delivered to same officer at different times, he must first levy the one which he first received and apply the collection accordingly. Million v. Commonwealth, 40 Ky. 310 , 1841 Ky. LEXIS 43 ( Ky. 1841 ) (decided under prior law).

When several executions were delivered to different authorities, each competent to act, prior lien attached in favor of first levy, though made on a junior execution. Million v. Commonwealth, 40 Ky. 310 , 1841 Ky. LEXIS 43 ( Ky. 1841 ) (decided under prior law).

Levy of attachment by constable gave priority over subsequent levy of execution by sheriff on same property, notwithstanding execution had been delivered to sheriff before attachment was delivered to, or levied by, constable. Bourne v. Hocker, 50 Ky. 23 , 1850 Ky. LEXIS 7 ( Ky. 1850 ) (decided under prior law).

14. — Improper Order of Execution.

Although as between executions against same debtor first levy gave priority of lien, sheriff was liable to senior execution creditor if he improperly first levied and satisfied junior execution. Arberry v. Noland, 25 Ky. 421 , 1829 Ky. LEXIS 119 ( Ky. 1829 ). See Kilby v. Haggin, 26 Ky. 208 , 1830 Ky. LEXIS 22 ( Ky. 1830 ) (decided under prior law).

Where officer holding both senior and junior executions against same debtor made levy of junior execution upon land not belonging to debtor, such levy, even if it forfeited junior execution, could not be complained of by senior execution. Staton v. Commonwealth, 32 Ky. 397 , 1834 Ky. LEXIS 112 ( Ky. 1834 ) (decided under prior law).

Sheriff was liable to senior execution creditors, where several executions against same debtor were delivered to him at different times and he applied proceeds of sale first to junior executions leaving senior executions partly unpaid. James v. Stone, 4 Ky. Op. 634, 1872 Ky. LEXIS 116 (Ky. Ct. App. Jan. 4, 1872) (decided under prior law).

15. — Improper Apportionment Among Creditors.

Sheriff is responsible for errors, if he undertakes to make what he believes to be equitable apportionment between execution creditors. James v. Stone, 4 Ky. Op. 634, 1872 Ky. LEXIS 116 (Ky. Ct. App. Jan. 4, 1872) (decided under prior law).

16. — Subsequent Purchaser.

After execution bound debtor’s goods by its delivery to officer, goods remained liable to the execution, although debtor sold them to bona fide purchaser for value. Daniel v. Cochran's Adm'r, 7 Ky. 532 , 1817 Ky. LEXIS 45 ( Ky. 1817 ) (decided under prior law).

Execution which was delivered to sheriff before execution debtor conveyed land to another created prior lien in creditor so that sale under execution subsequent to conveyance related back to time of delivery of execution and overreached the conveyance by debtor, notwithstanding debtor had contracted to sell the land before the execution was delivered. Million v. Riley, 31 Ky. 359 , 1833 Ky. LEXIS 90 ( Ky. 1833 ) (decided under prior law).

If bona fide purchaser acquired title from execution debtor while lien on debtor’s property existed, but lien was subsequently suspended by return of execution, purchaser’s title became exonerated from lien. Hood v. Winsatt, 40 Ky. 208 , 1841 Ky. LEXIS 12 ( Ky. 1841 ) (decided under prior law).

Where land subject to lien of subsisting levy under execution was conveyed by debtor, title passed to purchaser subject to be overreached by subsequent sale of land under execution. Cook v. Clemens, 87 Ky. 566 , 9 S.W. 820, 10 Ky. L. Rptr. 604 , 1888 Ky. LEXIS 115 ( Ky. 1888 ) (decided under prior law).

17. — Subsequent Mortgagee.

Notwithstanding levy of execution upon land, execution debtor may give mortgage upon it which invests mortgagee with such title as execution debtor had, subject to be overreached and defeated by regular sale and conveyance under execution, but not by void proceeding. Addison v. Crow & Jarvis, 35 Ky. 271 , 1837 Ky. LEXIS 54 ( Ky. 1837 ) (decided under prior law).

Where execution was delivered to sheriff prior to giving of chattel mortgage by debtor, and was kept alive by renewals, an execution which was delivered to sheriff of another county to which property had been removed, bound the property as against the mortgage. Forman v. Proctor, 48 Ky. 124 , 1848 Ky. LEXIS 41 ( Ky. 1848 ) (decided under prior law).

18. — Subsequent Bankruptcy.

Purchaser of land at execution sale had superior title to assignee in bankruptcy, where, after execution was delivered to sheriff, debtor was adjudicated bankrupt, but sheriff sold land to purchaser. Lessee of Waller v. Best, 44 U.S. 111, 11 L. Ed. 518, 1845 U.S. LEXIS 426 (U.S. 1845) (decided under prior law).

Cited:

In re Potts, 142 F.2d 883, 1944 U.S. App. LEXIS 3536 (6th Cir. 1944), cert. denied, Potts v. Potts, 324 U.S. 868, 65 S. Ct. 910, 89 L. Ed. 1423, 1945 U.S. LEXIS 2282 (1945); Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ); Commercial Transport Corp. v. Robinson Grain Co., 345 F. Supp. 342, 1972 U.S. Dist. LEXIS 15305 (W.D. Ky. 1972 ); In re Wilson, 38 B.R. 940, 1984 Bankr. LEXIS 5875 (Bankr. W.D. Ky. 1984 ).

Notes to Unpublished Decisions

1. Creation of Lien.
2. — Priority of Rights.

Unpublished decision: Appellant claimant’s arguments that her claim against a corporation had priority over an investment company’s interest in the corporation were meritless; although the claimant’s claim was best characterized as simply a contract claim (her judgment against the corporation was obtained during the litigation stay and she had not shown, or even asserted, that she converted her judgment into a lien), even if it was assumed that the claimant obtained a lien on the assets of the corporation, her claim would still have been subordinate to the investment company’s claim under any of the priority schemes that might have applied. United States v. Capital Across Am., L.P., 369 Fed. Appx. 674, 2010 FED App. 0161N, 2010 U.S. App. LEXIS 5457 (6th Cir. Tenn. 2010).

Research References and Practice Aids

Cross-References.

Constable, priority of executions placed in his hands, KRS 70.370 .

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Kentucky Law Journal.

Boster, Creditors’ Rights—Judgment Liens and Priorities in Kentucky, 41 Ky. L.J. 464 (1953).

426.130. Order in which property shall be levied on and sold.

Property shall be liable to levy and sale under execution in the following order: First, personalty; second, land.

History. 1692.

NOTES TO DECISIONS

1. Construction.

This section must be read in connection with KRS 426.006 , 426.010 , 426.190 , 426.430 , 426.520 , 426.560 , 426.685 , 426.695 , 426.715 , and 451.180 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

2. Personal Property.

In levying upon personal property, officer may take possession of property or he may leave it in possession of debtor or other person who holds it as bailee of officer. McBurnie v. Overstreet, 47 Ky. 300 , 1847 Ky. LEXIS 172 ( Ky. 1847 ). See Richardson & Letcher v. Bartley, 41 Ky. 328 , 1842 Ky. LEXIS 40 ( Ky. 1842 ) (decided under prior law).

Although officer may levy on as much property as he deems necessary to satisfy execution, yet he should exercise ordinary care to ascertain value of property levied on and should not levy on property having peculiar valuable quality, as blood in horses or cows, when levy on less valuable property would suffice. Vance v. Vanarsdale, 64 Ky. 504 , 1866 Ky. LEXIS 178 ( Ky. 1866 ) (decided under prior law).

Levy on movable property put thing into officer’s possession either actually or constructively and invested him with special property enabling him to maintain trespass or trover. Huston v. Duncan, 64 Ky. 205 , 1866 Ky. LEXIS 123 ( Ky. 1866 ) (decided under prior law). See Rogers v. Darnaby, 43 Ky. 238 , 1843 Ky. LEXIS 128 ( Ky. 1843 ).

Levy on personal property was valid, where execution debtor surrendered certain property to sheriff, and sheriff indorsed levy on execution, describing the property and stating that it was given to him by debtor, although the property was not present, was never seen by sheriff, and remained in debtor’s possession. Carlisle v. Wathen, 78 Ky. 365 , 1880 Ky. LEXIS 21 ( Ky. 1880 ) (decided under prior law).

Reason for rule that to constitute valid levy upon personal property, officer must do some act which would amount to trespass except for protection of the process is that the parties, especially the defendant, should know that levy has been made and that the property levied on should be known. Carlisle v. Wathen, 78 Ky. 365 , 1880 Ky. LEXIS 21 ( Ky. 1880 ) (decided under prior law).

The general rule was that it was necessary to validity of levy upon personal property that officer should do some act which would be a trespass but for the process. Carlisle v. Wathen, 78 Ky. 365 , 1880 Ky. LEXIS 21 ( Ky. 1880 ) (decided under prior law). See McBurnie v. Overstreet, 47 Ky. 300 , 1847 Ky. LEXIS 172 ( Ky. 1847 ).

A mere paper levy upon personal property amounts to nothing; possession or control must be taken, and mere indorsement or execution or statement to owner that levy was made on certain personal property without other action by officer was no levy. Demint v. Thompson, 80 Ky. 255 , 3 Ky. L. Rptr. 778 , 1882 Ky. LEXIS 48 ( Ky. 1882 ) (decided under prior law).

In an execution on personal property it is sufficient that the officer do something equivalent to a claim of dominion over the property with the power to enforce the claim but it is not necessary that he do that which amounts to a change of possession. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

Levy on personal property was made when sheriff after viewing stock of goods told debtor he would leave it in debtor’s possession but would take actual custody on return day. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

3. — Constructive Seizure.

To make a constructive seizure of goods so as to constitute a valid levy thereon, it was not sufficient to merely view the property, or survey debtor’s stock of goods and equipment, or indorse the levy on the back of execution. C. T. C. Inv. Co. v. Daniel Boone Coal Corp., 58 F.2d 305, 1931 U.S. Dist. LEXIS 2045 (D. Ky. 1931 ).

4. — Possession of Sheriff.

Possession of sheriff, who made levy but left property with execution debtor or other person on verbal understanding to produce it at sale, continued so as to authorize his action against bailee or person converting the property. Williams v. Herndon, 51 Ky. 484 , 1851 Ky. LEXIS 101 ( Ky. 1851 ) (decided under prior law).

5. — Jointly Owned.

In view of law that provided procedure for levy of execution on jointly owned property, levy on personal property owned jointly by debtor and another, with statement upon return, gave lien to creditor, with right to apply to court of equity as against other joint owner and others claiming interest in property to have rights determined. Vicory v. Strausbaugh, 78 Ky. 425 , 1880 Ky. LEXIS 34 ( Ky. 1880 ) (decided under prior law).

6. Real Property.

Levy on real estate did not divest debtor of title or possession; he was only divested of title by deed of officer and must resort to ejectment for possession. McBurnie v. Overstreet, 47 Ky. 300 , 1847 Ky. LEXIS 172 ( Ky. 1847 ) (decided under prior law).

Levy on land did not give officer possession and consequently he had no special property therein as he had by levy on movable property. Huston v. Duncan, 64 Ky. 205 , 1866 Ky. LEXIS 123 ( Ky. 1866 ) (decided under prior law). See Addison v. Crow & Jarvis, 35 Ky. 271 , 1837 Ky. LEXIS 54 ( Ky. 1837 ); Oldham v. Scrivener, 42 Ky. 579 , 1843 Ky. LEXIS 75 ( Ky. 1843 ).

When levying upon real estate, sheriff did not disturb possession or even right of possession of debtor. Demint v. Thompson, 80 Ky. 255 , 3 Ky. L. Rptr. 778 , 1882 Ky. LEXIS 48 ( Ky. 1882 ) (decided under prior law).

Levy of execution on land may be made by going upon land, actually levying, and making indorsement upon execution within reasonable time thereafter; officer need not personally notify landowner or occupant of the levy. Jones v. Allen, 88 Ky. 381 , 11 S.W. 289, 10 Ky. L. Rptr. 962 , 1889 Ky. LEXIS 46 ( Ky. 1889 ) (decided under prior law).

Law does not authorize sheriff to require or accept bond of indemnity for levying upon or selling real estate, since by levy and sale neither sheriff nor purchaser acquires possession or control of the land. Torian v. Caldwell, 167 Ky. 670 , 181 S.W. 373, 1916 Ky. LEXIS 478 ( Ky. 1916 ).

7. — Personalty Unavailable.

Where no personal property was found in the county of execution a sale of real property in the county was valid even though the execution had referred to “personal estate” and the sheriff was not notified by the debtor as to the debtor’s alleged ownership of personal property in another county. Anderson v. Blackburn, 297 S.W.2d 919, 1956 Ky. LEXIS 29 ( Ky. 1956 ).

8. — Personalty Available.

Sale of interest in land of one of debtors was not vitiated even when execution creditor became purchaser, by alleged fact that other debtor had sufficient personal property to satisfy execution, especially where creditor had tried unsuccessfully to levy on personal property. Beeler's Heirs v. Bullitt's Heirs, 10 Ky. 280 , 1821 Ky. LEXIS 108 ( Ky. 1821 ) (decided under prior law).

Levy upon and sale of debtor’s land was authorized, where, to avoid sacrifice sale, sheriff had surrendered personal property previously levied on and agreed that proceeds should be distributed according to rights under several levies. Jones v. Lusk, 59 Ky. 356 , 1859 Ky. LEXIS 114 ( Ky. 1859 ) (decided under prior law).

Sale of lots was not vitiated, notwithstanding debtor had personal property out of which execution could have been satisfied, although if debtor was damaged he could hold sheriff responsible. Allen v. Farley, 76 S.W. 538, 25 Ky. L. Rptr. 930 (1903).

Execution creditor cannot object to levy and sale under execution even if sheriff improperly levied on debtor’s real estate without attempting to levy on his allegedly sufficient personal property. McMillen v. Bailey, 271 Ky. 628 , 112 S.W.2d 1009, 1938 Ky. LEXIS 27 ( Ky. 1938 ).

9. — Dower Rights.

Where mortgaged land in which wife had inchoate dower was sold under execution against husband, and his equity of redemption was also sold, the sale passed title, in view of subsection (1) of KRS 392.040 in residue of land or proceeds after satisfying mortgage subject to wife’s inchoate dower, and that right was not lessened by husband’s failure to redeem. Potter v. Skiles, 114 Ky. 132 , 70 S.W. 301, 24 Ky. L. Rptr. 910 , 1902 Ky. LEXIS 146 ( Ky. 1902 ), op. withdrawn, sub. op., in part, 114 Ky. 132 , 71 S.W. 627, 24 Ky. L. Rptr. 1457 , 1903 Ky. LEXIS 300 ( Ky. 1903 ).

10. — Sufficiency of Levy.

Levy was sufficiently descriptive of land levied on where officer stated number of acres, county and creek where located, and in return referred to deeds from debtor’s vendors for more particular description. Bell v. Weatherford, 75 Ky. 505 , 1877 Ky. LEXIS 110 ( Ky. 1877 ) (decided under prior law).

Levy upon real estate was sufficiently made where sheriff holding execution saw and informed debtor that he had levied on certain tract of land and indorsed execution “levied” with date, but did not describe property levied on. Demint v. Thompson, 80 Ky. 255 , 3 Ky. L. Rptr. 778 , 1882 Ky. LEXIS 48 ( Ky. 1882 ) (decided under prior law). See Randall v. Ewell, 55 S.W. 552, 21 Ky. L. Rptr. 1425 , 1900 Ky. LEXIS 582 ( Ky. 1900 ).

Levy stating particular tract levied on, the deed under which defendant claimed, number of acres, and that property was known as “Sayer’s Depot in Nelson County” was sufficiently descriptive of the property. Sayers v. Hahn, 12 Ky. Op. 313, 5 Ky. L. Rptr. 319 , 1883 Ky. LEXIS 267 (Ky. Ct. App. Oct. 18, 1883) (decided under prior law).

Levy “on the interest of” debtor in certain described real estate was sufficient without specifying particular interest owned by debtor. Humphrey's Ex'r v. Wade, 84 Ky. 391 , 1 S.W. 648, 8 Ky. L. Rptr. 384 , 1886 Ky. LEXIS 79 ( Ky. 1886 ) (decided under prior law).

11. — Evidence of Levy.

Sheriff may show by parol that he made levy on land, it not being essential that his action should be reduced to writing when levy is made. Demint v. Thompson, 80 Ky. 255 , 3 Ky. L. Rptr. 778 , 1882 Ky. LEXIS 48 ( Ky. 1882 ) (decided under prior law). See McBurnie v. Overstreet, 47 Ky. 300 , 1847 Ky. LEXIS 172 ( Ky. 1847 ); Jones v. Allen, 88 Ky. 381 , 11 S.W. 289, 10 Ky. L. Rptr. 962 , 1889 Ky. LEXIS 46 ( Ky. 1889 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Kentucky Law Journal.

Boster, Creditors’ Rights—Judgment Liens and Priorities in Kentucky, 41 Ky. L.J. 464 (1953).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insolvent Debtors, § 154.00.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.13.

426.140. Personalty insufficient, land may be sold.

If there is not enough personal property, the officer may levy on land at the same time and sell a sufficiency thereof to satisfy the execution.

History. 1693.

NOTES TO DECISIONS

1. Sale of Land.

Sale of land under execution was void, if debtor had personal property subject to execution, where purchaser induced sheriff to sell land and thus participated in his violation of duty. Hayden v. Dunlap, 6 Ky. 216 , 1813 Ky. LEXIS 96 ( Ky. 1813 ) (decided under prior law).

Presumption being that officer did his duty, sale of land need not be void where owner did not show that he had personal property subject to execution, and even if officer did not do duty, sale would not be void, although sheriff would be liable to owner in damages. Holcomb v. Hays, 62 S.W. 1028, 23 Ky. L. Rptr. 352 , 1901 Ky. LEXIS 469 (Ky. Ct. App. 1901).

2. — Several Debtors.

Unless purchaser participated in illegality, sale was not invalidated by fact that execution was levied on land of one of execution debtors and sold to purchaser, notwithstanding another execution debtor had considerable personal property subject to execution. Faris v. Banton, 29 Ky. 235 , 1831 Ky. LEXIS 170 ( Ky. 1831 ) (decided under prior law).

Where execution was against several debtors, it was not necessary for officer to exhaust personal property of all debtors before land of one of them could be sold, although officer was unauthorized to sell land of any debtor without his consent, while he could levy on personal property of that debtor. Faris v. Banton, 29 Ky. 235 , 1831 Ky. LEXIS 170 ( Ky. 1831 ) (decided under prior law).

3. — Sheriff’s Liability.

Sale of debtor’s land in violation of sheriff’s duty while debtor had personal property subject to execution would not void sale, although it would render sheriff liable for breach of duty, the statutory provisions being directory. Hayden v. Dunlap, 6 Ky. 216 , 1813 Ky. LEXIS 96 ( Ky. 1813 ) (decided under prior law).

Opinions of Attorney General.

The issuance of an execution is controlled by the recovering party, not by the circuit clerk. Thus, where the judgment debtor has insufficient personal property upon which execution can be had, the circuit clerk has no statutory authority to require the issuance of two executions, one for personalty and one for real estate; the one writ which the judgment plaintiff has procured (issued) will suffice. OAG 84-173 .

Research References and Practice Aids

Cross-References.

Constable not to levy on or sell interest in land, KRS 70.350 .

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.13.

426.150. Defendant may select property to be sold—May surrender property not levied on.

The defendant may, on the day of the sale, in writing, direct the property levied on to be sold in any succession he desires. He may produce other property or the title to land in the county not levied on and, by writing, direct the same to be sold first, and in that case the residue of the execution and costs, if any, shall be made out of the property levied on.

History. 1694.

NOTES TO DECISIONS

1. Selection of Property.

Execution debtor’s written surrender of land to be sold was merely an exercise of his right to select property to be sold, and did not sanction, or estop him from impeaching, a void sale. Geoghegan v. Ditto, 59 Ky. 433 , 1859 Ky. LEXIS 134 ( Ky. 1859 ) (decision under prior law).

Officer having right to levy execution against two debtors upon whole or any part of land jointly owned by them was authorized to levy upon and sell portion of land which one debtor told him had been assigned to other debtor who was responsible for debt. Ard v. Walker, 3 Ky. Op. 226, 1869 Ky. LEXIS 357 (Ky. Ct. App. June 22, 1869) (decision under prior law).

Direction by execution debtor to sheriff to sell land instead of personal property did not authorize sheriff to sell land as one tract. Graves v. Thompson, 5 Ky. Op. 678, 1871 Ky. LEXIS 565 (Ky. Ct. App. June 17, 1871) (decision under prior law).

426.160. Personal property — Time and place of sale — Advertisement.

Personal property may be sold at or in the vicinity of the place of levy in ten (10) days after the levy. The time and place of sale and a description of the property shall be advertised, by posting written or printed notices ten (10) days preceding the sale at three (3) of the most public places in the vicinity of the place of sale, and by newspaper notice if required by KRS 426.560 .

History. 1695.

NOTES TO DECISIONS

1. Sale of Personalty.

Sale of personal property under execution was not vitiated by selling two (2) items thereof together, although they were divisible in nature, where no fraud was shown on part of sheriff or purchasers. Lawrence v. Speed, 5 Ky. 401 , 1811 Ky. LEXIS 75 ( Ky. 1811 ) (decided under prior law).

Sale under levy upon 3,000 bricks in kiln containing much greater number without further designation was sustained, where designated number of bricks were taken indiscriminately from kiln opened in usual manner. Hill v. Harris, 49 Ky. 120 , 1849 Ky. LEXIS 38 ( Ky. 1849 ) (decided under prior law).

Sheriff who levied on property could sell it after return of execution, without writ of venditioni exponas, and after he had gone out of office. Colyer v. Higgins, 62 Ky. 6 , 1863 Ky. LEXIS 4 ( Ky. 1863 ) (decided under prior law).

It was duty of sheriff who levied and returned an execution when in office to complete it by selling and conveying the property even after he was out of office. Newton v. Prather, 62 Ky. 100 , 1863 Ky. LEXIS 32 ( Ky. 1863 ) (decided under prior law).

Notwithstanding return of execution, sheriff should sell personal property upon which he had levied during lifetime of execution and of which he had actual or constructive possession. Savings Institution of Harrodsburg v. Chinn's Adm'r, 70 Ky. 539 , 1870 Ky. LEXIS 122 ( Ky. 1870 ) (decided under prior law).

Officer controls sale he is making, but discretion which he exercises must be with due regard to rights of parties. Hood v. Pope, 233 Ky. 749 , 26 S.W.2d 1043, 1930 Ky. LEXIS 656 ( Ky. 1930 ).

2. — Chattel Mortgage.

Sheriff in making sale under execution could not determine whether chattel mortgage given by debtor after delivery of execution to him but before actual levy was valid lien, and could not advise bidders that it would be paid from proceeds of sale, but, knowing of it, he properly advised bidders of it. Hood v. Pope, 233 Ky. 749 , 26 S.W.2d 1043, 1930 Ky. LEXIS 656 ( Ky. 1930 ).

3. — Death of Debtor.

Sales under execution issued after defendant’s death passed nothing. Thomas v. Tanner, 22 Ky. 52 , 1827 Ky. LEXIS 230 ( Ky. 1827 ) (decided under prior law).

4. — Failure to Advertise.

Sale of personal property at execution was not vitiated although sheriff failed to advertise pursuant to law, where there was no fraud on part of sheriff or purchasers and fair price was obtained. Lawrence v. Speed, 5 Ky. 401 , 1811 Ky. LEXIS 75 ( Ky. 1811 ) (decided under prior law).

5. — Defect in Advertising.

Sale was not affected by irregularity or defect in the advertisement unless the purchaser was privy to it. Kilby v. Haggin, 26 Ky. 208 , 1830 Ky. LEXIS 22 ( Ky. 1830 ) (decided under prior law).

6. — Collusive Sale.

Sale of personal property under execution was not legally made and should be vacated on equitable terms, where fact that readily divisible property was sold together and not separately, and was not produced at sale, justified conclusion that sale was collusive. Burns v. Ray, 57 Ky. 392 , 1857 Ky. LEXIS 45 ( Ky. 1857 ) (decided under prior law).

7. — Property Left with Debtor.

That property sold under execution was permitted by purchaser to remain in possession of debtor did not render sale fraudulent and void. Kilby v. Haggin, 26 Ky. 208 , 1830 Ky. LEXIS 22 ( Ky. 1830 ) (decided under prior law).

Where officer in selling property under execution is informed of defect or adverse claim, or has facts placing reasonably prudent man on inquiry, he should take indemnity bond to protect purchaser as well as claimant, or at least should make known the defects or adverse claim. Harrison v. Shanks, 76 Ky. 620 , 1878 Ky. LEXIS 10 ( Ky. 1878 ) (decided under prior law).

8. — Sale After Return.

Where sheriff has taken property before return day, he may sell it afterwards, since authority to take and sell property is entire, and he who begins an execution may finish it. Rudd v. Johnson, 15 Ky. 19 , 1824 Ky. LEXIS 11 ( Ky. 1824 ) (decided under prior law).

Research References and Practice Aids

Kentucky Law Journal.

Harris, Defending Deficiency Judgment Suits in Kentucky: Article Nine, Part 5 of the Uniform Commercial Code, 61 Ky. L.J. 578 (1973).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

426.170. Growing crop—When may be sold—Passes with sale of land.

No crop shall be levied on or sold under execution, attachment or any other legal or equitable proceeding, except an attachment for rent or to secure a mortgage or statutory lien, unless it has been severed from the ground, until after October 1 in each year. But, if the estate of the defendant in the land is liable to be sold, and is levied on and sold, the title to the growing crop may pass by the sale.

History. 1696.

NOTES TO DECISIONS

1. Growing Crops.

Growing annual crops being regarded as personalty are subject to levy and sale under execution, though they are exempt from seizure before October 1, unless severed, and pass with execution sale of land. Burley Tobacco Growers' Co-op. Asso. v. Carrollton, 208 Ky. 270 , 270 S.W. 749, 1925 Ky. LEXIS 268 ( Ky. 1925 ).

This statute merely prevents levy on or coercive sale for limited period, but does not exempt growing crops from payment of debts, and hence mortgage of growing crop operated as assignment of all debtor’s property within KRS 378.060 , and making of it when insolvent was preferential. Williams v. Carter, 209 Ky. 461 , 273 S.W. 88, 1925 Ky. LEXIS 521 ( Ky. 1925 ).

2. — Levy Before Severance.

Levy on growing corn not severed from ground on October 2 put officer in constructive possession, where he went on each field where corn was standing as pointed out to him by tenant of execution debtor and indorsed levy on execution on same day. Field v. Smith, 8 Ky. Op. 843, 1875 Ky. LEXIS 245 (Ky. Ct. App. Oct. 15, 1875) (decided under prior law).

3. — Mortgage.

Mortgage of growing crops, which were not subject to execution, being made in contemplation of insolvency and with design to prefer one creditor to exclusion of others, operated as assignment of all mortgagor’s property for benefit of creditors. Brewer & Orr v. Cosby, 71 Ky. 388 , 8 Bush 388, 1871 Ky. LEXIS 69 ( Ky. 1871 ), overruled, Blincoe v. Lee, 75 Ky. 358 , 12 Bush 358, 1876 Ky. LEXIS 95 (1876), overruled in part, Blincoe v. Lee, 75 Ky. 358 , 12 Bush 358, 1876 Ky. LEXIS 95 (1876), overruled, Blincoe v. Lee, 75 Ky. 358, 12 Bush 358, 1876 Ky. LEXIS 95 (1876) (decided under prior law).

426.180. Railroads—Property subject to execution—Receiver to enforce judgment.

  1. The rolling stock and other movable property belonging to any railroad company in this state shall be considered personal property, and liable to execution and sale in the same manner as the property of individuals. The earnings, money and choses in action of any railroad company in the hands of any officer, agent or employee may be subjected to the payment of debts in the same manner as similar property of individuals.
  2. If an execution on a judgment against any company owning or operating any railroad in this state is returned by the proper officer showing no property found, in whole or in part, the plaintiff therein may institute an equitable action against the company in the circuit court of the county in which the judgment was rendered to place its road and property in the hands of a receiver. The court, upon a petition showing such return and the failure to pay the judgment, shall, upon the service of summons upon the company, appoint some suitable person as receiver of the company.
  3. The receiver shall take possession and control of all the road and property belonging to and operated by the company, including all rolling stock. The receiver shall operate the road until he has collected a sum sufficient to pay the judgment and costs and the cost of the receivership, and he shall then surrender the road and property to the defendant. The receiver shall first pay out of the earnings and receipts of the road collected by him the necessary operating expenses, including what shall be necessary to keep the road in such repair that it can be safely and properly operated. A bond for the faithful performance of his duties with good and sufficient surety approved by the court shall be executed by the receiver before entering upon his duties.

History. 814.

NOTES TO DECISIONS

1. Railroad Property.

After return unsatisfied of executions against railroad company for damages to execution creditors’ abutting properties, creditors’ liens, which were on entire line and which were superior to rights which another railroad company may have acquired by contract with first mentioned railroad company, were enforceable by having receiver appointed and obtaining injunction against use of road of first mentioned railroad company by latter. Ball v. Maysville & B. S. R. Co., 102 Ky. 486 , 43 S.W. 731, 19 Ky. L. Rptr. 1540 , 1897 Ky. LEXIS 139 ( Ky. 1897 ).

Research References and Practice Aids

Cross-References.

Burial association, if unsatisfied judgment against, receiver may be appointed, KRS 303.150 .

Receivers — Persons not to be appointed receivers, KRS 31A.080 .

Rolling stock and other personalty of railroad subject to execution and attachment, Ky. Const., § 212.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Railroads, § 335.00.

426.190. Land liable to execution—What interest defendant must have therein.

Land to which the defendant has a legal or equitable title in fee, for life or for a term, whether in possession, reversion or remainder, or in which the defendant has a contingent interest or a contingent remainder or a defeasible fee, may be taken and sold under execution.

History. 1681.

NOTES TO DECISIONS

1. Construction.

This section must be read in connection with KRS 426.006 , 426.010 , 426.130 , 426.430 , 426.520 , 426.560 , 426.685 , 426.695 , 426.715 , and 451.180 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

2. Execution on Land.

At common law land was not subject to sale under execution, and hence authority to so subject it must be found in the statutes. M'Connell v. Brown, 21 Ky. 478 , 1827 Ky. LEXIS 192 ( Ky. 1827 ) (decided under prior law).

Execution was properly levied upon land by grantee under unrecorded deed. Newsom v. Kurtz, 86 Ky. 277 , 5 S.W. 575, 9 Ky. L. Rptr. 587 , 1887 Ky. LEXIS 131 ( Ky. 1887 ) (decided under prior law).

3. — Tenants by Entirety.

Under this section, the contingent survivorship interest of the spouse in real estate held as tenants by the entireties is subject to be levied upon and sold and if a bankrupt’s spouse dies subsequent to the filing of a petition in bankruptcy but prior to discharge, the real estate becomes part of the bankrupt’s estate, title thereto vesting in the trustee, and the bankrupt is not entitled to one half the proceeds of the sale of the real estate. Hayes v. Schaefer, 399 F.2d 300, 1968 U.S. App. LEXIS 5766 (6th Cir. Ky. 1968 ).

Husband’s right in land owned by him and wife as tenants by entirety to succeed to entirety of title upon contingency of surviving wife could be levied on and sold under execution, being subject to defeasance if wife survives husband. Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

The United States could not force the sale of property held jointly by husband and wife as tenants in entirety with rights of survivorship, where husband was convicted of offenses involving visual depictions of a minor engaged in sexually explicit conduct; although the government became a successor to convicted husband’s interest in the property, it could only sell husband’s contingent estate in the property since the wife was an innocent owner. United States v. Real Property Located at 5205 Mt. Howard Court Louisville, 755 F. Supp. 169, 1990 U.S. Dist. LEXIS 18207 (W.D. Ky. 1990 ).

Bankruptcy debtor’s entireties interest in marital residence was not exempt under applicable bankruptcy law even though his wife was a nondebtor. In re Osbourne, 124 B.R. 726, 1989 Bankr. LEXIS 2708 (Bankr. W.D. Ky. 1989 ).

4. — Tenancy in Common.

Interest of husband in fee to land contingent upon his outliving wife could be sold pursuant to this section, where the land was held by him and his wife during joint lives as tenants in common with remainder in fee simple to survivor. In re Brown, 60 F.2d 269, 1932 U.S. Dist. LEXIS 1326 (D. Ky. 1932 ).

5. — Vested Remainders.

Interest of devisees in land constituting vested remainder or defeasible fee was subject to execution against them in lifetime of life tenant; if they died before life tenant, execution creditor would take nothing but if they outlived life tenant, interest would ripen into fee simple. Roach v. Dance, 80 S.W. 1097, 26 Ky. L. Rptr. 157 (1904).

6. — Life Estate.

Life estate of beneficiary derived from will giving him total income from estate of testatrix would be subject to his debts though trustee was appointed to hold title. Johnson's Tr. v. Johnson, 79 S.W. 293, 25 Ky. L. Rptr. 2119 , 1904 Ky. LEXIS 279 (Ky. Ct. App. 1904).

Under a specific provision of statute as well as independently thereof, execution was leviable upon life estate of debtor in land. Wilson v. Devasher, 204 Ky. 408 , 264 S.W. 1057, 1924 Ky. LEXIS 477 ( Ky. 1924 ).

7. — Alienation Restrictions.

Devise of land to son upon death of testator’s widow with provision that he should not pledge, mortgage or sell it until attaining certain age would be subject to execution for son’s debts. Smith v. Smith, 115 Ky. 329 , 73 S.W. 1028, 24 Ky. L. Rptr. 2261 , 1903 Ky. LEXIS 106 ( Ky. 1903 ).

When land is devised by a will which forbids encumbrances to be placed on the land, such restrictions cannot exempt the land from execution to pay the debts of the devisee. Smith v. Smith, 115 Ky. 329 , 73 S.W. 1028, 24 Ky. L. Rptr. 2261 , 1903 Ky. LEXIS 106 ( Ky. 1903 ).

Devisee’s interest in land under will directing that none of it should be sold until oldest son reached 35 years old was subject to devisee’s debts, in view of this section and KRS 381.180 , notwithstanding will prevented devisee from conveying it. Girdler v. Girdler, 113 S.W. 835 ( Ky. 1908 ).

Provision in will that devisee should not alienate or encumber the interest devised until 15 years after testator’s death did not prohibit sale of the property devised for benefit of devisee’s creditors. Anderson v. Blackburn, 297 S.W.2d 919, 1956 Ky. LEXIS 29 ( Ky. 1956 ).

8. — Defeasible Fee.

Execution should not be levied on land which had been devised to beneficiary with provision if he sold or encumbered it, it should vest in beneficiary’s children. Ford v. Ford, 230 Ky. 56 , 18 S.W.2d 859, 1929 Ky. LEXIS 8 ( Ky. 1929 ).

9. — Not Owned by Debtor.

Sale upon execution against wife of land owned by husband was void and subject to collateral attack, where there was no record that husband had authorized sheriff in writing to sell land, notwithstanding sheriff’s return stated that husband had given up the land for sale to satisfy debt. Spears v. Weddington, 146 Ky. 434 , 142 S.W. 679, 1912 Ky. LEXIS 65 ( Ky. 1912 ).

10. — Priority of Claims.

Claim of execution creditor, whose levy on debtor’s real estate was subsequent to debtor’s assignment for benefit of creditors and deed to assignee, was preferred, where the assignment was not made in good faith. In re Bradley, 27 F. Supp. 475, 1939 U.S. Dist. LEXIS 2938 (D. Ky. 1939 ).

11. — Trust Property.

Property held by trustee in trust to apply income or earnings to debtor during his life was subject to sale under execution against debtor, and not merely the income or earnings. Eastland v. Jordan, 6 Ky. 186 , 1813 Ky. LEXIS 81 ( Ky. 1813 ) (decided under prior law).

Land was subject to levy under execution against debtor, where deed showed that entire consideration moved from debtor and that named grantee held the land in trust for him. Blanchard v. Taylor's Heirs, 46 Ky. 645 , 1847 Ky. LEXIS 91 ( Ky. 1847 ) (decided under prior law).

12. — Adverse Possession.

Land which was in adverse possession of others was not subject to levy and sale under execution, and hence purchaser acquired no title. M'Connell v. Brown, 21 Ky. 478 , 1827 Ky. LEXIS 192 ( Ky. 1827 ) (decided under prior law).

13. — Life Estate.

Levies made on land in which execution debtor owned life estate created lien upon life estate. Coleman v. Sumrall, 91 Ky. 188 , 15 S.W. 667, 12 Ky. L. Rptr. 770 , 1891 Ky. LEXIS 42 ( Ky. 1891 ) (decided under prior law).

14. — Prior Fraudulent Conveyance.

If deed of debtor to his land is actually fraudulent, execution creditor may treat it as nullity and, without attaching it, levy upon and sell the land for his debt. Scott's Ex'x v. Scott, 85 Ky. 385 , 3 S.W. 598, 9 Ky. L. Rptr. 363 , 1887 Ky. LEXIS 58 ( Ky. 1887 ) (decided under prior law).

15. — Prior Contract to Convey.

Levy upon and sale of interest of execution debtor in land was proper, although execution debtor, who was prospective beneficiary or heir of his mother, the owner, had, before her death, contracted for valuable consideration to convey his interest to his sister. Alves v. Schlesinger, 81 Ky. 290 , 5 Ky. L. Rptr. 280 , 1883 Ky. LEXIS 61 ( Ky. 1883 ) (decided under prior law).

16. — Subsequent Purchaser.

At moment when execution against debtor was issued and delivered to sheriff, it became lien on life estate of debtor in land and bound subsequent purchaser who concededly had notice of it. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

Cited:

Fischer v. Porter, 263 Ky. 372 , 92 S.W.2d 368, 1936 Ky. LEXIS 183 ( Ky. 1936 ); Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ); In re Brumbaugh, 250 B.R. 605, 2000 Bankr. LEXIS 744 (Bankr. W.D. Ky. 2000 ).

Research References and Practice Aids

Cross-References.

Actions affecting land, notice to be filed, KRS 382.440 .

Execution, attachment and internal revenue tax liens to be filed with county clerk, KRS 382.450 .

Kentucky Law Journal.

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

Collateral References.

ALR

Creditors’ rights as affected by grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin. 16 A.L.R.2d 713.

Solid mineral royalty as real or personal property for purposes of execution. 68 A.L.R.2d 735.

Interest of spouse in estate by entireties as subject to levy of attachment or execution in satisfaction of his or her individual debt. 75 A.L.R.2d 1172.

426.200. Sale of land — Place of — Advertisement — Appraisement.

  1. Land shall be sold under execution to the highest bidder at the courthouse door of the county in which it lies. Only so much land shall be sold as will satisfy the execution under which the sale is made.
  2. The officer making the sale shall first advertise the time and place of sale by written notice describing the land to be sold, posted at the courthouse door and three other places in the vicinity of the land for fifteen days next preceding the sale, or by newspaper notice if required by KRS 426.560 .
  3. Before a sale of land, the officer shall have the land appraised, under oath, by two disinterested, intelligent housekeepers of the county, who may be sworn by him. If the appraisers disagree, the officer shall act as umpire. If a part of a tract only is sold, the part sold shall, after the sale, be revalued in like manner. The appraisal shall be in writing, signed by the persons making it, subject to inspection by the public prior to the sale, and returned with the execution. The officer shall refer to and explain the proceeding in his return on the execution, which return shall be recorded in full.

History. 1682: amend. Acts 1976 (Ex. Sess.), ch. 14, § 428, effective January 2, 1978; 2012, ch. 39, § 1, effective July 12, 2012.

NOTES TO DECISIONS

1. Sale of Land.

KRS 426.700 , providing that notices of sale must state for what sum sale is to be made, has no application to sales under execution. Mason v. Letcher Coal & Coke Co., 196 Ky. 629 , 245 S.W. 130, 1922 Ky. LEXIS 550 ( Ky. 1922 ).

This section applies only to sales under execution and not to judicial sales. Ward v. Vanhoose, 222 Ky. 135 , 300 S.W. 337, 1927 Ky. LEXIS 870 ( Ky. 1927 ).

2. — Appraisement.

Sheriff was legally empowered to select appraisers, and if he permitted plaintiff and defendant each to select appraiser, he was acting merely from courtesy and not in discharge of legal duty. Knight v. Whitman, 69 Ky. 51 , 1869 Ky. LEXIS 98 ( Ky. 1869 ) (decided under prior law).

Failure to have the property appraised or to have the appraisers sworn was mere irregularity of sheriff in making sale and would not affect title of purchaser unless he participated in the irregularity. Sayers v. Hahn, 12 Ky. Op. 313, 5 Ky. L. Rptr. 319 , 1883 Ky. LEXIS 267 (Ky. Ct. App. Oct. 18, 1883) (decided under prior law).

Even if provisions of law respecting appraisal of land before sale were not so mandatory that failure to observe them literally would nullify sale, a failure which was material to debtor’s rights would, in equity, permit him to redeem. Vallandigham v. Worthington, 85 Ky. 83 , 2 S.W. 772 ( Ky. 1887 ) (decided under prior law).

Lack of appraisement was shown, where recitals in sheriff’s deed were overcome by testimony of witnesses, and sheriff did not say in his deposition that land was appraised. Brandenburgh v. Beach, 32 S.W. 168, 17 Ky. L. Rptr. 560 (1895).

Appraisement of real estate was not invalidated as against objection that deputy sheriff had no authority to administer oath to appraisers, since even if there was no direct authority to officer to administer such oath, failure to have appraisers sworn would not affect purchaser unless he participated in the irregularity. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897).

Appraisement sufficiently showed value of remainderman’s interest to be $1,400, where land was valued at $2,000 in all and life tenant’s interest at $600. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897).

Appraiser, although under 21 years old, was authorized to act, where he possessed qualifications required by statute. White v. Laurel Land Co., 82 S.W. 571, 26 Ky. L. Rptr. 775 , 1904 Ky. LEXIS 401 (Ky. Ct. App. 1904).

Sale of land under execution without appraisement is void. Angel v. Byars, 153 Ky. 208 , 154 S.W. 1109, 1913 Ky. LEXIS 814 ( Ky. 1913 ). See Brandenburgh v. Beach, 32 S.W. 168, 17 Ky. L. Rptr. 560 (1895).

Appointment of appraiser was not made, where sheriff spoke to prospective appointee, but believing him to be interested, declined to appoint him, and selected and swore another. Tully v. Trimble, 175 Ky. 30 , 193 S.W. 659, 1917 Ky. LEXIS 272 ( Ky. 1917 ).

Appraisement is required to protect debtor’s right of redemption. Mullins v. Robinson, 225 Ky. 648 , 9 S.W.2d 988, 1928 Ky. LEXIS 836 ( Ky. 1928 ). See Angel v. Byars, 153 Ky. 208 , 154 S.W. 1109, 1913 Ky. LEXIS 814 ( Ky. 1913 ).

A report of sale which recites that land sold under execution “was duly appraised by three unnamed disinterested housekeepers” states a mere legal conclusion and does not comply with the provisions of subsection (3) of this section which require the officer to refer to and explain the proceeding in his return. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

There can be no valid sale without a valid appraisement. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

3. — — Wrong Land.

Land was sold at execution sale without appraisement, where appraisers’ description of tract appraised showed that it was not the tract sold. Likens v. Pate, 160 Ky. 319 , 169 S.W. 734, 1914 Ky. LEXIS 446 ( Ky. 1914 ).

4. — — Mistake in Value.

There being no fraud, appraisement cannot be attacked on ground that appraisers made honest mistake in valuation, although not mistaken as to lands appraised. Marcum v. Thompson, 222 Ky. 702 , 2 S.W.2d 392, 1928 Ky. LEXIS 241 ( Ky. 1928 ). See Tully v. Trimble, 175 Ky. 30 , 193 S.W. 659, 1917 Ky. LEXIS 272 ( Ky. 1917 ).

Sale was not invalidated by fact that appraisers, although an undivided one half of the land was levied on, valued the entire tract, and did not state that the undivided one half was worth one half thereof. Mullins v. Robinson, 225 Ky. 648 , 9 S.W.2d 988, 1928 Ky. LEXIS 836 ( Ky. 1928 ).

5. — Inadequate Price.

Inadequacy of sale price is not per se a sufficient ground for setting aside an execution sale. McFall v. Rainbow Coal & Feed Co., 301 Ky. 720 , 193 S.W.2d 141, 1946 Ky. LEXIS 554 ( Ky. 1946 ).

6. — Advertisement.

Sheriff’s failure to advertise sale of land as statutorily prescribed does not necessarily vitiate sale, although it may impose liability on him for injury suffered because of such failure, the statutory provisions being directory. Webber v. Cox, 22 Ky. 110 , 1827 Ky. LEXIS 241 ( Ky. 1827 ) (decided under prior law). See Hayden v. Dunlap, 6 Ky. 216 , 1813 Ky. LEXIS 96 ( Ky. 1813 ).

Sale of real estate under execution was not void, although sheriff’s failure to cry sale in manner statutorily prescribed might have authorized motion to quash sale. Young v. Smith, 49 Ky. 293 , 1850 Ky. LEXIS 93 ( Ky. 1850 ) (decided under prior law).

Writ of possession for land sold under execution was erroneously granted where sheriff’s return showed that sale was advertised for only ten days next preceding day of sale. Scott v. Powers, Little & Co., 78 S.W. 408, 25 Ky. L. Rptr. 1640 (1904).

Notices of sale of land on execution were sufficient, where sheriff reported that he placed one notice on courthouse door and three other notices at public places near land, despite evidence that the four tracts were separated and that witnesses, testifying nine years later, did not see them. White v. Laurel Land Co., 82 S.W. 571, 26 Ky. L. Rptr. 775 , 1904 Ky. LEXIS 401 (Ky. Ct. App. 1904).

Execution sale of land may be vacated because of failure to advertise as prescribed by statute, if motion for that purpose is timely made. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909).

Sale of land was not vitiated by fact that sheriff advertised that he would sell entire tract of four (4) acres without statement that he could sell less if it would satisfy judgment. Siler v. Lawson, 163 Ky. 6 , 173 S.W. 158, 1915 Ky. LEXIS 175 ( Ky. 1915 ).

7. — — Sheriff’s Return.

Return of sheriff and report of appraisers of land could not be impeached after lapse of nine years by evidence of appraisers indicating that they had forgotten what they actually did, where there was no showing that sheriff practiced any fraud in their selection or that purchaser participated therein. White v. Laurel Land Co., 82 S.W. 571, 26 Ky. L. Rptr. 775 , 1904 Ky. LEXIS 401 (Ky. Ct. App. 1904).

Sheriff’s report that, after advertising time, place, and terms of sale and having property appraised as required by law, he sold it, shows advertisement by posting written notices at prescribed places and times and that notices described land to be sold. Mason v. Letcher Coal & Coke Co., 196 Ky. 629 , 245 S.W. 130, 1922 Ky. LEXIS 550 ( Ky. 1922 ).

Since official statements of sheriff, being presumptively true, are not attackable collaterally in view of KRS 61.060 , it should not be ruled, in collateral attack and in absence of exceptions to sheriff’s report, that execution sale was not properly advertised. Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ).

Deputy sheriff’s statement, in return on execution, that he had advertised execution sale as required by statute was conclusive in absence of proof of fraud or mistake. Feltner v. Colwell, 294 Ky. 581 , 172 S.W.2d 219, 1943 Ky. LEXIS 494 ( Ky. 1943 ).

8. — Purchase by Executor.

Although administrator had no right in decedent’s real estate, he can buy land at execution sale under judgment obtained by him as administrator. Jackson v. Roberts, 95 Ky. 410 , 25 S.W. 879, 15 Ky. L. Rptr. 831 , 1894 Ky. LEXIS 36 ( Ky. 1894 ).

Fact that executor purchased at sale to save his debt does not invalidate sale or title of assignees of his bid. Jones v. Webb, 59 S.W. 858, 22 Ky. L. Rptr. 1100 (1900).

9. — Cash Sale.

Sale of land for cash instead of upon at least six months’ credit was valid, since KRS 426.700 applies only to judicial sales and not to sales under execution. Mason v. Letcher Coal & Coke Co., 196 Ky. 629 , 245 S.W. 130, 1922 Ky. LEXIS 550 ( Ky. 1922 ).

10. — Separate Tracts.

Ordinarily, in selling land under execution, each tract should be offered separately and, if not sold in this way, all the property may be sold together on a reasonable bid. White v. Roberts, 112 Ky. 788 , 66 S.W. 758, 23 Ky. L. Rptr. 2187 , 1902 Ky. LEXIS 224 ( Ky. 1902 ).

11. — Sale in Excess of Debts.

Sale of real estate was properly quashed and resale ordered, where entire farm of 73 acres divided by county road was sold and it appeared that if sold in separate tracts, smaller parcel on one side of road would have satisfied judgment. White v. Roberts, 112 Ky. 788 , 66 S.W. 758, 23 Ky. L. Rptr. 2187 , 1902 Ky. LEXIS 224 ( Ky. 1902 ).

Execution sale was void, where sheriff without offering separately two (2) tracts aggregating 500 acres and appraised at $1,500, sold them as a whole for $120, and it appeared that sale of either would have satisfied debt. Mullins v. Southwood, 108 S.W. 324, 32 Ky. L. Rptr. 1246 (1908).

Sale of land under execution was void, where sheriff sold two (2) lots appraised at $1,500 for $120, without first offering one lot or part thereof necessary to pay debt, and, if bid was insufficient, then offering second lot or as much thereof as was necessary. Mullins v. Southwood, 108 S.W. 324, 32 Ky. L. Rptr. 1246 (1908).

Sale of land under execution was void, where sheriff did not set apart homestead before sale and sold land worth much more than debt without asking if any bidder would take less than whole tract and pay debt. Sublett v. Gardner, 144 Ky. 190 , 137 S.W. 864, 1911 Ky. LEXIS 568 ( Ky. 1911 ).

Sale of four acres of land was not vitiated merely by fact that sheriff obtained greater sum than needed to satisfy execution, where it was not shown that land was divisible and sheriff offered less number of acres if bidder would pay execution and received no bid. Siler v. Lawson, 163 Ky. 6 , 173 S.W. 158, 1915 Ky. LEXIS 175 ( Ky. 1915 ).

Where sheriff, after selling five lots singly, realized upon selling sixth lot more than enough to satisfy execution, he should have divided sixth lot, if it was divisible, or, if it was indivisible, should have excluded certain of other lots, so as not to sell more land than was needed to satisfy execution. Marcum v. Thompson, 222 Ky. 702 , 2 S.W.2d 392, 1928 Ky. LEXIS 241 ( Ky. 1928 ).

Execution creditor could not object to sheriff’s alleged irregularity in selling more property than necessary to satisfy the execution, since title or interests of others in property would not thereby be altered. McMillen v. Bailey, 271 Ky. 628 , 112 S.W.2d 1009, 1938 Ky. LEXIS 27 ( Ky. 1938 ).

Where, at time of sale of ten-acre tract of land, under execution for $672, the sheriff first offered to sell any portion of the land for the exact amount due, and, there being no bidder, then sold the entire tract for $850, the debtor was not entitled to have sale set aside on ground that more land than necessary was sold. McFall v. Rainbow Coal & Feed Co., 301 Ky. 720 , 193 S.W.2d 141, 1946 Ky. LEXIS 554 ( Ky. 1946 ).

12. — Sale by Succeeding Sheriff.

After sale under execution was vacated on motion made for that purpose, issuance of venditioni exponas, and placing it in hands of sheriff succeeding sheriff who made original levy, and sale of property, was authorized by KRS 70.110 . Davis v. Hudson, 195 Ky. 766 , 244 S.W. 68, 1922 Ky. LEXIS 434 ( Ky. 1922 ).

13. — Duties of Sheriff.

There is a presumption that the sheriff performed his duties properly with regard to an execution sale. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

14. — Description of Land.

Description of land in sheriff’s report of sale was sufficient where it referred to appraisement filed with report of sale, and appraisement described land by creek, county, state, adjoining lands, and metes and bounds. McFall v. Rainbow Coal & Feed Co., 301 Ky. 720 , 193 S.W.2d 141, 1946 Ky. LEXIS 554 ( Ky. 1946 ).

15. — Invalid Sales.

Execution sale of land should be quashed, where sheriff sold the land to several judgment creditors for amount erroneously stated to be the amount of their debts, whereas one judgment was for greater sum, and price obtained was greatly inadequate. Scott v. Powers, Little & Co., 78 S.W. 408, 25 Ky. L. Rptr. 1640 (1904).

A price inadequacy coupled with some slight irregularity of sale constitute a combination calculated to be a sufficient justification for vacating a judicial sale by a chancellor acting within his discretion. Miller v. Richards, 305 Ky. 624 , 205 S.W.2d 308, 1947 Ky. LEXIS 885 ( Ky. 1947 ).

Chancellor did not abuse discretion in setting aside judicial sale of land, notwithstanding that sale price was some $3,000 over official appraised value, where sale price was only one fifth of loan value fixed by F. H. A. a short time before the sale, and where there was a slight variation between the way in which the sale was conducted and the way in which it had been advertised that the sale would be conducted. Miller v. Richards, 305 Ky. 624 , 205 S.W.2d 308, 1947 Ky. LEXIS 885 ( Ky. 1947 ).

A sheriff’s levy of execution and sale of land thereunder without complying with statutory provisions will be set aside. Adams v. Napier, 334 S.W.2d 915, 1960 Ky. LEXIS 238 ( Ky. 1960 ).

16. — Confirmation.

A chancellor is never, in deciding whether a sale should be confirmed, limited to an examination of the official appraisal, which may be ultraconservative or just decidedly erroneous, even though totally free from any kind of fraud. Miller v. Richards, 305 Ky. 624 , 205 S.W.2d 308, 1947 Ky. LEXIS 885 ( Ky. 1947 ).

17. — Appeal.

Where question was first raised on appeal, Court of Appeals would not adjudge sale of two lots to be invalid, where no motion to quash was made in court below, notwithstanding one lot could have been sold absolutely and other was subject to liens. Allen v. Farley, 76 S.W. 538, 25 Ky. L. Rptr. 930 (1903).

18. — Time of Sale.

Sale was not vitiated by lapse of three years between time of levy and of sale, during which period execution creditor had successive writs of venditioni exponas issued. Locke v. Coleman, 20 Ky. 315 , 1827 Ky. LEXIS 24 ( Ky. 1827 ) (decided under prior law).

Execution plaintiff was not estopped from objecting to validity of sale not made on first day of court, notwithstanding his attorney knew that sheriff intended to sell on that date and made no objection, but did not assent to sale at that time even if authorized to do so. Chambers' Adm'r v. Hays, 45 Ky. 115 , 1845 Ky. LEXIS 86 ( Ky. 1845 ) (decided under prior law).

Motion to quash execution sale on ground that it was made on day other than first day of court was not barred by lapse of between two and three years from sale. Chambers' Adm'r v. Hays, 45 Ky. 115 , 1845 Ky. LEXIS 86 ( Ky. 1845 ) (decided under prior law).

To authorize execution sale of land on any day other than first day of court, there had to be written consent of parties or such acts as would estop them from afterwards questioning sale. Chambers' Adm'r v. Hays, 45 Ky. 115 , 1845 Ky. LEXIS 86 ( Ky. 1845 ) (decided under prior law).

Execution debtor, who on day of sale assisted in selecting appraisers and did not object to sale on third, rather than first day of term, waived objection on that ground. Casey v. Gregory, 52 Ky. 505 , 1852 Ky. LEXIS 70 ( Ky. 1852 ) (decided under prior law).

Sale of land under execution, on any other than the first day of a county or circuit court of the county where the land lay, was void, unless consented to by the defendant. Wile v. Sweeny, 63 Ky. 161 , 1865 Ky. LEXIS 40 ( Ky. 1865 ) (decided under prior law). See Casey v. Gregory, 52 Ky. 505 , 1852 Ky. LEXIS 70 ( Ky. 1852 ).

The fact that the sale was not made between the hours specified in the advertisement, and was made after sheriff announced it would not be made, was not sufficient to invalidate the sale, it not appearing that defendant was injured thereby. Sayers v. Hahn, 12 Ky. Op. 313, 5 Ky. L. Rptr. 319 , 1883 Ky. LEXIS 267 (Ky. Ct. App. Oct. 18, 1883) (decided under prior law).

19. — Place of Sale.

There was no such irregularity as would void execution sale of land which took place in front of hotel being used as courthouse after destruction of courthouse by fire. Perry v. Lacy, 6 Ky. Op. 45, 1872 Ky. LEXIS 405 (Ky. Ct. App. Dec. 7, 1872) (decided under prior law).

Sale of land should not be vacated, where sheriff sold it at courthouse door on first day of county or circuit court, notwithstanding he failed to state in return that he had sold it at time and place prescribed by law. Bell v. Weatherford, 75 Ky. 505 , 1877 Ky. LEXIS 110 ( Ky. 1877 ) (decided under prior law).

20. — Control by Judge.

Notwithstanding creditor could not, at his caprice, direct what part of entire tract subject to his execution should be sold, chancellor might interfere and control manner of sale to prevent loss to innocent parties. Meader v. Meader, 88 Ky. 217 , 10 S.W. 651 ( Ky. 1889 ) (decided under prior law).

21. — Death of Owner.

Sale of land after death of owner under an execution levy made in his lifetime was void, and sheriff’s deed to purchaser was also void. Burge's Adm'r v. Brown, 68 Ky. 535 , 1869 Ky. LEXIS 46 ( Ky. 1869 ) (decided under prior law). See Holeman's Ex'r v. Holeman's Heirs, 65 Ky. 514 , 1866 Ky. LEXIS 194 ( Ky. 1866 ).

22. — Injunction Against Sale.

Notwithstanding proceedings under execution were stayed by injunction, sheriff had authority to make sale where he retained execution and did not return it as stayed. Daviess v. Myers, 52 Ky. 511 , 1852 Ky. LEXIS 72 ( Ky. 1852 ) (decided under prior law).

23. — Sheriff Out of Office.

Where sheriff makes levy and goes out of office or resigns therefrom before making sale, he may nevertheless sell, with or without a venditioni exponas, since he who begins to make the money by seizure and sale of property may finish it. Lofland v. Ewing, 15 Ky. 42 , 1824 Ky. LEXIS 23 ( Ky. 1824 ) (decided under prior law).

24. — Sale After Return.

Sheriff, having seized property before the execution was returnable, could sell it after the return. Irvin & Bullock v. Picket, 6 Ky. 343 , 1814 Ky. LEXIS 58 ( Ky. 1814 ) (decided under prior law). See Cox v. Joiner, 7 Ky. 94 , 1815 Ky. LEXIS 59 ( Ky. 1815 ).

25. — Valuation After Return.

After return, officer was unauthorized to cause valuation of land levied on to be made or to furnish with return the prescribed evidence that the right to redeem existed. Reid v. Heasley, 39 Ky. 324 , 1840 Ky. LEXIS 23 ( Ky. 1840 ) (decided under prior law).

26. — Multiple Executions.

Several executions levied on land could be combined and one sale made of so much thereof as would satisfy the whole even though some of the executions were for ready money and some required sale on credit. Southard v. Pope's Ex'r, 48 Ky. 261 , 1848 Ky. LEXIS 63 ( Ky. 1848 ) (decided under prior law). See Locke v. Coleman, 20 Ky. 315 , 1827 Ky. LEXIS 24 ( Ky. 1827 ).

27. Land in Another County.

Sheriff who made levy upon land while it was within his county could sell the land although, after levy, part of it was stricken off into another county. Lofland v. Ewing, 15 Ky. 42 , 1824 Ky. LEXIS 23 ( Ky. 1824 ) (decided under prior law).

28. — Purchase by Creditor.

Sales of real estate under execution were not void where execution creditors agreed that one of them should bid and purchase, especially where deputy sheriff testified that sale was fairly conducted in presence of number of persons. Young v. Smith, 49 Ky. 293 , 1850 Ky. LEXIS 93 ( Ky. 1850 ) (decided under prior law).

29. — Purchase by Lessee.

Lessee of premises was not prohibited from purchasing leased premises at execution sale. Casey v. Gregory, 52 Ky. 505 , 1852 Ky. LEXIS 70 ( Ky. 1852 ) (decided under prior law).

30. — Sheriff’s Commission.

In selling land under execution, the officer had a right to sell enough to cover his commissions in addition to the sums specified in the execution. Adams v. Keiser, 37 Ky. 208 , 1838 Ky. LEXIS 122 ( Ky. 1838 ) (decided under prior law).

31. — Separate Tracts.

It was sheriff’s duty to sell separately the several lots which had distinct metes and bounds, especially where one of the lots was more valuable than others. Graves v. Thompson, 5 Ky. Op. 678, 1871 Ky. LEXIS 565 (Ky. Ct. App. June 17, 1871) (decided under prior law).

32. — Revaluation of Unsold Land.

Failure of sheriff to procure part of land sold to be valued after the sale did not invalidate sale, although, if land sold for less than two thirds of its value, equity might afford relief to debtor and officer might be liable for injury caused by his delinquency. Reid v. Heasley, 39 Ky. 324 , 1840 Ky. LEXIS 23 ( Ky. 1840 ) (decided under prior law).

33. — Mistake in Amount Sold.

Sale of land under execution was not invalidated, where entire tract was sold, notwithstanding there was mistake as to number of acres which parties believed were sold. Meehan v. Edwards, 92 Ky. 574 , 13 Ky. L. Rptr. 803 , 18 S.W. 519, 1892 Ky. LEXIS 24 ( Ky. 1892 ), aff’d, Meehan v. Edwards, 19 S.W. 179 (1892) (decided under prior law).

34. — Sale in Gross.

Sale under execution of entire tract of 4,000 acres; readily divisible, for about $370 to satisfy execution of $74.23 was void. Patterson v. Carneal's Heirs, 10 Ky. 618 , 1821 Ky. LEXIS 242 ( Ky. 1821 ) (decided under prior law).

Sale of two tracts in gross, especially where debtor owned one tract unencumbered while he owned undivided interest in other tract subject to mortgage, was gross abuse of discretion and justified inference that sale was fraudulent and collusive, where plaintiff was purchaser and there was gross inadequacy of price. Dougherty v. Linthicum, 38 Ky. 194 , 1839 Ky. LEXIS 45 ( Ky. 1839 ) (decided under prior law).

Where land was given up to be sold in gross, and plaintiff, although present, did not object to manner of sale, and good price was obtained, sale in gross, even if irregular and quashable, was not void and could not be vacated by plaintiff after lapse of ten years. Williamson v. Logan, 40 Ky. 237 , 1841 Ky. LEXIS 21 ( Ky. 1841 ) (decided under prior law).

35. — Sale in Excess of Debt.

Sale of land under execution was void, where sheriff exceeded his authority by selling more land than was necessary to satisfy execution, notwithstanding execution debtor attended sale, pointed out boundaries of land, and did not object to sheriff’s statement that bond would be taken from purchaser to secure debtor in right to surplus. Pepper v. Commonwealth, 22 Ky. 27 , 1827 Ky. LEXIS 221 ( Ky. 1827 ) (decided under prior law).

Sheriff could not legally sell more of land than was sufficient to discharge the execution, costs and commissions. Davidson v. M'Murtry, 25 Ky. 68 , 1829 Ky. LEXIS 26 ( Ky. 1829 ) (decided under prior law). See Stover v. Boswell's Heir, 33 Ky. 232 , 1835 Ky. LEXIS 80 ( Ky. 1835 ); Morrison v. Bruce, 39 Ky. 211 , 1839 Ky. LEXIS 122 ( Ky. 1839 ); Walker v. McKnight, 54 Ky. 467 , 1854 Ky. LEXIS 89 ( Ky. 1854 ).

Officer was not authorized to sell land additional to that which was sufficient to realize execution despite written direction of execution debtor to sell all land, where debtor had previously given mortgage on the land, and hence was not owner for the purpose of authorizing sale to extent greater than authorized by execution. Addison v. Crow & Jarvis, 35 Ky. 271 , 1837 Ky. LEXIS 54 ( Ky. 1837 ) (decided under prior law).

Sale of land under execution was void, where officer, acting under venditioni exponas, sold both lots levied on for sum greatly exceeding amount of execution, since law permitted sale of only so much of land as was necessary to satisfy debt. Addison v. Crow & Jarvis, 35 Ky. 271 , 1837 Ky. LEXIS 54 ( Ky. 1837 ) (decided under prior law).

Mere excess of few cents in amount produced by sale is not sufficient evidence that sheriff exceeded authority by selling more land than was necessary to satisfy execution. Adams v. Keiser, 37 Ky. 208 , 1838 Ky. LEXIS 122 ( Ky. 1838 ) (decided under prior law).

Sale by sheriff of more land than was sufficient to satisfy the execution was an excess of authority and vitiated entire sale, because it could not be so split up as to be good for part and void for residue. Adams v. Keiser, 37 Ky. 208 , 1838 Ky. LEXIS 122 ( Ky. 1838 ) (decided under prior law).

Sale should not be vacated where excess raised by sale was small, and it did not appear that sale of less quantity of land would have satisfied executions, and amount due on executions was miscalculated by mistake. Southard v. Pope's Ex'r, 48 Ky. 261 , 1848 Ky. LEXIS 63 ( Ky. 1848 ) (decided under prior law).

Execution sale was nullity and passed no title to purchaser, if sheriff sold land for more than the debt, since by doing so he exceeded ministerial duty given by the execution. Dawson v. Litsey, 73 Ky. 408 , 1874 Ky. LEXIS 66 ( Ky. 1874 ) (decided under prior law).

36. — — Waiver of Objection.

Although owner of land sold at execution might, at his option, avoid sale of more than enough to satisfy execution, he may waive such avoidance or by conduct be estopped from urging it. Daniel v. McHenry, 67 Ky. 277 , 1868 Ky. LEXIS 118 ( Ky. 1868 ) (decided under prior law).

Sale of land was affirmed, although more than enough to satisfy execution might have been sold, where more than year had elapsed between sale and conveyance by sheriff without offer to redeem, and purchaser had paid bid and received sheriff’s deed, and neither owner nor his alleged vendee objected to sale on account of alleged excessive amount sold. Daniel v. McHenry, 67 Ky. 277 , 1868 Ky. LEXIS 118 ( Ky. 1868 ) (decided under prior law).

Although sale of land for $23.00 more than debt might render sale voidable at instance of debtor, yet debtor could and did waive error by directing sheriff to return surplus proceeds to purchaser and let sale stand. Thomas' Adm'r v. Thomas' Adm'x, 87 Ky. 343 , 10 S.W. 282, 10 Ky. L. Rptr. 223 , 1888 Ky. LEXIS 125 ( Ky. 1888 ) (decided under prior law).

Sale of entire tract under execution was valid, notwithstanding more land was sold than was necessary to satisfy debt, where debtor directed that whole tract be sold and purchaser, who might have treated such as void, acquiesced therein for more than 20 years. Meehan v. Edwards, 92 Ky. 574 , 13 Ky. L. Rptr. 803 , 18 S.W. 519, 1892 Ky. LEXIS 24 ( Ky. 1892 ), aff’d, Meehan v. Edwards, 19 S.W. 179 (1892) (decided under prior law).

Opinions of Attorney General.

The master commissioner is not required to put the legal description of the property to be sold in the newspaper advertisement. OAG 86-84 .

Since subsection (1) of this section requires only so much of the land to be sold as will satisfy the execution under which the sale is made, the land being sold is divisible to the extent of satisfying the execution. OAG 86-84 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Advertisement of Sheriff’s Sale, Form 151.31.

Caldwell’s Kentucky Form Book, 5th Ed., Appraisement of Land Before Sale, Form 151.19.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executions, § 151.00.

Caldwell’s Kentucky Form Book, 5th Ed., Sheriff’s Return on Execution, Form 151.33.

426.205. Sale of vacant and abandoned real property to enforce mortgage or lien — Proof of vacancy and abandonment — Confirmation of sale and conveyance of property.

  1. In an action otherwise properly brought to enforce a mortgage or lien against real property, including a lien pursuant to KRS 65.8801 to 65.8839 or KRS 65.8840 , which has been determined by the court to be vacant and abandoned, a sale of the property shall be ordered expeditiously.
  2. Real property shall be considered vacant and abandoned, for purposes of this section only, if there has been no legal resident or other person legally entitled to occupy the property residing at the property for a period of forty-five (45) or more consecutive days and two (2) or more of the following or similar circumstances which would lead a reasonable person to believe that the property is vacant exist:
    1. Overgrown or dead vegetation;
    2. Accumulation of flyers, mail, or trash;
    3. Disconnected utilities;
    4. The absence of window coverings or furniture;
    5. Uncorrected hazardous conditions or vandalism; or
    6. Statements of neighbors, delivery persons, or government employees that the property is vacant.

      Proof of vacancy and abandonment may be offered by affidavit filed at or after the time of filing of the complaint by the plaintiff or other lienholder.

  3. If the court makes a finding in the order of sale that the property is vacant and abandoned, the master commissioner shall sell the property within seventy (70) days of the order.
  4. The plaintiff or other mortgage or lienholder in whose favor the judgment and order of sale were entered shall apply for an order confirming the sale within twenty (20) days of the date of the sale and, unless there have been exceptions to the report of the master commissioner, the court shall act on such application not later than the next regularly scheduled civil motion or rule day.
  5. The master commissioner shall make conveyance of the property on the date the court confirms the sale, or as soon thereafter as all costs and fees have been paid by the foreclosing mortgagee or lienholder, or as soon as a third-party purchaser has paid the purchase price.

History. Enact. Acts 2012, ch. 93, § 1, effective July 12, 2012; 2019 ch. 52, § 4, effective June 27, 2019.

426.210. Defendant may designate tract or part of tract to be sold—Duty of officer—Title papers.

  1. If the defendant in execution has an interest as provided in KRS 426.190 in several tracts of land in the same county, he or his agent or attorney may, by writing, direct an officer having an execution against him to make the amount of the execution first out of such of the tracts as he may designate. This direction shall not preclude the officer from levying on and selling other property at the same time to supply any deficiency. Proper title papers shall be delivered to the officer with the directions.
  2. If the whole tract is bid up to the amount required to be made on the execution, the defendant or his agent or attorney if present may designate what side or end of the land shall be sold. If no designation is made, the officer must declare which side or end he will sell, according to what he deems best for the interest of the defendant.

History. 1683, 1687.

NOTES TO DECISIONS

1. Valid Sale Presumed.

If sheriff, upon sale of land under execution, cried the property and inquired whether any bidder would take less than whole land and pay whole amount of execution, it was unnecessary to show the sum in his report, since presumption runs with process, report and return that he complied with law, unless contrary is shown. Mason v. Letcher Coal & Coke Co., 196 Ky. 629 , 245 S.W. 130, 1922 Ky. LEXIS 550 ( Ky. 1922 ).

2. Designation by Sheriff.

Sheriff should, in first instance, offer land in manner directed by execution debtor, but if it would not satisfy execution when so offered, he should offer it according to own views, conducting sale fairly and not selling more than enough to satisfy debt, costs and commissions. Davidson v. M'Murtry, 25 Ky. 68 , 1829 Ky. LEXIS 26 ( Ky. 1829 ) (decided under prior law).

Execution sale of land was properly vacated where in purported compliance with statute directing officer, when tract was bid up to amount of execution, to designate on which side or end purchaser should take what he bought, sheriff’s designation left uncertainty as to location or quantity of land to be sold. Allison v. Taylor's Heirs, 42 Ky. 363 , 1843 Ky. LEXIS 28 ( Ky. 1843 ) (decided under prior law).

3. Designation by Judge.

Chancellor could direct that part of entire tract which was subject to execution should be sold first, where, on division, that part had been awarded to principal debtor. Meader v. Meader, 88 Ky. 217 , 10 S.W. 651 ( Ky. 1889 ) (decided under prior law).

426.220. Redemption — Right of — Payment of money — Possession of defendant.

  1. If land sold under execution does not bring two-thirds of its appraised value, the defendant and his representatives may redeem it within six (6) months from the day of sale, by paying the purchaser or his representative the original purchase money and ten percent per annum interest thereon. The defendant redeeming his land shall take a receipt from the purchaser and lodge it with the clerk of the court, which receipt shall be filed and recorded with the execution under which the sale was made.
  2. The defendant may tender the redemption money to the purchaser or his agent or attorney, if in the county where the land lies or in the county where the judgment was obtained, and if the money is refused or if the purchaser does not reside in either of the counties, the defendant may, before the expiration of six (6) months, go to the clerk of the court where the execution issued and make affidavit of the tender and refusal or that the purchaser or his agent or attorney does not reside in the county where the land lies or where the execution issued, as he believes. He may then pay to the clerk the redemption money for the purchaser, and the clerk shall give a receipt therefor and file the affidavit with the execution in his office.
  3. When the right of redemption exists, the defendant may remain in possession until the right of redemption expires.

History. 1684; 2013, ch. 103, § 1, effective June 25, 2013.

NOTES TO DECISIONS

1. Redemption.

Legal right to redeem depended upon compliance with preliminary statutory steps respecting valuation of land, tender of redemption money to purchaser, and affidavit of nonacceptance, and clerk was not authorized to take affidavit or receive redemption money unless returns showed that right to redeem existed. Reid v. Heasley, 39 Ky. 324 , 1840 Ky. LEXIS 23 ( Ky. 1840 ) (decided under prior law).

Even if redemption of land was not made within year, payments made by owner after that period could be shown in defense of motion for writ of possession where movant was not bona fide purchaser at execution sale, but bought and held land in trust for owner. Ashcraft v. Bowling, 193 Ky. 31 , 234 S.W. 945, 1921 Ky. LEXIS 180 ( Ky. 1921 ).

Where, before the recording of plaintiff’s deed, the grantor’s execution creditors had bought in the land at an execution sale and the defendants had bought the grantor’s equity of redemption at a subsequent sale, and, after the recording of plaintiff’s deed, defendants purchased the interest of the execution creditors and received a sheriff’s deed, defendants were bona fide purchasers within the meaning of KRS 382.270 , since their purchase of the interest of the execution creditors amounted to a redemption, and the title under the sheriff’s deed related back to the time when the execution was levied and the lien created. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

2. — Land Subject to Lien.

Usual rule that execution debtor must redeem within year does not apply where land encumbered by lien is sold under execution, but in such cases owner may redeem at any time lien exists. Due v. Bankhardt, 151 Ky. 624 , 152 S.W. 786, 1913 Ky. LEXIS 556 ( Ky. 1913 ).

3. — Sale Without Appraisement.

Where purchaser of land, sold under execution without having appraisement made, seeks to dispossess execution debtor, the debtor should be allowed to redeem notwithstanding lapse of year. Smith v. Mason, 25 S.W. 493, 15 Ky. L. Rptr. 719 (1894).

4. — Interest.

Debtor whose right to redeem was prolonged beyond year must pay ten per cent (10%) interest for year and afterwards six per cent upon the aggregate amount due. Southard v. Pope's Ex'r, 48 Ky. 261 , 1848 Ky. LEXIS 63 ( Ky. 1848 ) (decided under prior law).

Purchaser at execution sale, who held title in trust subject to owner’s right to reconveyance, should receive interest for year at ten per cent (10%), and thereafter, after adding together principal and interest, at six per cent (6%). Williams v. Williams, 71 Ky. 241 , 1871 Ky. LEXIS 45 ( Ky. 1871 ) (decided under prior law).

Obligation to pay more than legal rate of interest for additional time to redeem, unless made at or before giving such right, was usurious, being merely contract to pay interest on pre-existing liability. Fitzpatrick v. Apperson's Ex'r, 79 Ky. 272 , 2 Ky. L. Rptr. 249 , 1881 Ky. LEXIS 15 ( Ky. 1881 ) (decided under prior law).

Where redemption right was sold and purchasers took possession of the property, but after extended litigation sale of redemption right was adjudged void, and original owner of land still had right to redeem from first sale by virtue of agreement of purchaser at first sale to extend time of redemption beyond conclusion of litigation, the purchasers of the equity of redemption, who had acquired the rights of the purchaser at the first sale in connection with the invalid proceedings for sale of the equity of redemption, were not entitled to interest on the purchase money, because it was offset by the reasonable rental of the property during their occupancy, and the original owner was entitled to redeem by paying the money to the clerk without first tendering it to the purchasers. Pinson v. Bentley, 293 Ky. 490 , 169 S.W.2d 305, 1943 Ky. LEXIS 645 ( Ky. 1943 ).

5. — Agreement for Extra Time.

Omission to redeem according to agreement between purchaser and debtor prolonging statutory period rendered purchase absolute and irredeemable and barred debtor’s right to redeem thereafter. Southard v. Pope's Ex'r, 48 Ky. 261 , 1848 Ky. LEXIS 63 ( Ky. 1848 ) (decided under prior law).

Right of redemption may be extended beyond year by parol agreement and does not come within statute of frauds. Griffin v. Coffey, 48 Ky. 452 , 1849 Ky. LEXIS 88 ( Ky. 1849 ) (decided under prior law).

Trust was created where purchaser at execution sale verbally agreed to hold the land as security for money advanced and interest, and that owner should have right to redeem, and trust was enforceable although purchaser had held title for 15 years. Williams v. Williams, 71 Ky. 241 , 1871 Ky. LEXIS 45 ( Ky. 1871 ) (decided under prior law).

If purchaser of land at execution sale verbally promised debtor that he might redeem after statutory redemption period expired, such agreement will be enforced on principle of estoppel, where debtor tendered redemption money after expiration of statutory period. Holcomb v. Hays, 62 S.W. 1028, 23 Ky. L. Rptr. 352 , 1901 Ky. LEXIS 469 (Ky. Ct. App. 1901).

Redemption of land after expiration of year from sale with permission of execution purchaser, who had not taken deed from sheriff, had same effect as if made within year, removed encumbrance and left property as if it had not been sold under execution. Botts v. Botts, 74 S.W. 1093, 25 Ky. L. Rptr. 300 (1903).

Where purchaser at execution sale made agreement with defendant to allow him extra time to redeem, a subsequent involuntary assignee of the purchaser was required to observe the agreement. Pinson v. Bentley, 293 Ky. 490 , 169 S.W.2d 305, 1943 Ky. LEXIS 645 ( Ky. 1943 ).

6. — Fraud by Purchaser.

Redemption of land from execution sale was permitted after lapse of year, where purchaser, who was son of owner, fraudulently prevented timely redemption by promising his aged father, who believed it necessary to go to distant county seat to redeem, that he would take him there, but did not, and did not intend to do so. Daniel v. Daniel, 190 Ky. 210 , 226 S.W. 1070, 1921 Ky. LEXIS 404 ( Ky. 1921 ).

7. — Mistake in Appraisement.

Redemption was properly allowed where land was described as containing 235 acres, valued at $2.00 an acre, and sold for more than two thirds of value, but in fact land contained 257 acres and price paid was not two thirds of value of greater number of acres. Pollard's Heirs v. Lucas, 37 Ky. 454 , 1838 Ky. LEXIS 170 ( Ky. 1838 ) (decided under prior law).

Debtor should be allowed to redeem land, where he surrendered it to sheriff for sale without advertisement, but appraisers mistook land levied on and appraised different tract, resulting in lower appraisal than land levied on was worth, and thus depriving debtor, who was not present at sale, of right to redeem. Vallandigham v. Worthington, 85 Ky. 83 , 2 S.W. 772 ( Ky. 1887 ) (decided under prior law).

8. — Time Expired.

Right to redeem land after year had expired from execution sale was denied to heirs, although at time of sale their ancestor was lunatic for whom committee had been appointed. Allison v. Taylor's Heirs, 42 Ky. 363 , 1843 Ky. LEXIS 28 ( Ky. 1843 ) (decided under prior law).

Execution debtor, who was landlord of premises bought by his tenant at execution sale, had no equitable right to redeem as against purchaser after lapse of year, notwithstanding alleged misinformation as to when year expired given him by court clerk but not participated in by purchaser. Casey v. Gregory, 52 Ky. 505 , 1852 Ky. LEXIS 70 ( Ky. 1852 ) (decided under prior law).

9. — Partial Payment.

If, during period for redemption, debtor offers and purchaser receives partial payment, debtor’s right to redeem extends beyond expiration of year. Southard v. Pope's Ex'r, 48 Ky. 261 , 1848 Ky. LEXIS 63 ( Ky. 1848 ) (decided under prior law).

By acceptance of part payments on debt after expiration of time to redeem, execution purchaser waived right to demand deed, and gave notice that he would not refuse redemption. Fitzpatrick v. Apperson's Ex'r, 79 Ky. 272 , 2 Ky. L. Rptr. 249 , 1881 Ky. LEXIS 15 ( Ky. 1881 ) (decided under prior law).

10. — Purchaser’s Refusal of Money.

Execution debtor should be allowed to redeem after expiration of year where his timely offer to do so was prevented by purchaser’s refusal to accept sum offered, believing it to be insufficient. Bramel v. Burden, 13 Ky. Op. 477, 7 Ky. L. Rptr. 97 , 1885 Ky. LEXIS 219 (Ky. Ct. App. May 21, 1885) (decided under prior law).

Cited:

United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff’d in part, rev’d in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. 1989), mod’f, United States v. Wood, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. 1989).

Opinions of Attorney General.

Land sold under execution which is subject to redemption shall not be conveyed by the sheriff making the sale until after the expiration of one year from the sale, nor shall he convey after that period if the land has been redeemed or an affidavit made and the money deposited with the clerk of the court. OAG 79-80 .

426.230. Conveyance of land subject to redemption.

Land sold under execution which is subject to redemption shall not be conveyed by the officer making the sale until the expiration of six (6) months from the sale, nor shall he convey after that period if the land has been redeemed or an affidavit made and the money deposited with the clerk as provided in KRS 426.220 , unless by court order or with the written assent of the defendant in the execution.

History. 1685; 2013, ch. 103, § 2, effective June 25, 2013.

426.240. Redemption right may be sold — Rights of defendant and purchaser.

The right of redemption may be sold under execution. The land shall still be subject to redemption by the defendant, from both purchasers, for six (6) months from the first sale. The purchaser of the right of redemption may, before the end of six (6) months from the first sale, pay the prior purchaser his money and interest as provided in KRS 426.220 , and be entitled to the land, subject to the rights of possession and redemption held by the defendant in the execution.

History. 1686; 2013, ch. 103, § 3, effective June 25, 2013.

NOTES TO DECISIONS

1. Sale of Redemption Right.

The first levy on the equity of redemption and sale thereunder vested purchaser with right to redeem. Glazebrook & Bro. v. Brandon, 11 Ky. Op. 355, 3 Ky. L. Rptr. 466 , 1881 Ky. LEXIS 328 (Ky. Ct. App. Dec. 1, 1881) (decided under prior law).

Where right of redemption existed and was levied on and sold, purchaser of equity of redemption, within year after first sale, could pay prior purchaser and take land unless execution defendant, within year from first sale, redeemed the land. Bethel v. Smith, 83 Ky. 84 , 7 Ky. L. Rptr. 14 , 1885 Ky. LEXIS 41 (Ky. Ct. App. 1885) (decided under prior law).

Where land is sold to satisfy execution and amount realized is less than two thirds of appraised value, so that redemption right exists under KRS 426.220 , and land is again sold under second execution, if anything passed under second execution sale, it was merely right of redemption, and, assuming that any outstanding right still remained in the land, redemption must be from both execution purchasers. Young v. Venters, 229 Ky. 806 , 18 S.W.2d 277, 1929 Ky. LEXIS 848 ( Ky. 1929 ).

Right of redemption accruing under this section because land was sold for less than two thirds of its appraised value is itself subject to sale under execution. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

2. — Dower Rights.

Where mortgaged land in which wife had inchoate dower was sold under execution against husband, and his equity of redemption was also sold, the sale passed title in view of subsection (1) of KRS 392.040 in residue of land or proceeds after satisfying mortgage subject to wife’s inchoate dower, and that right was not lessened by husband’s failure to redeem within year. Potter v. Skiles, 114 Ky. 132 , 70 S.W. 301, 24 Ky. L. Rptr. 910 , 1902 Ky. LEXIS 146 ( Ky. 1902 ), op. withdrawn, sub. op., in part, 114 Ky. 132 , 71 S.W. 627, 24 Ky. L. Rptr. 1457 , 1903 Ky. LEXIS 300 ( Ky. 1903 ).

426.250. Conveyance to purchaser by sheriff.

The sheriff who sells land under execution or his deputy or successor shall, on demand, convey the title sold to the purchaser or his assignee, heirs or devisees, if the land is not redeemed and the redemption period has expired.

History. 1688.

NOTES TO DECISIONS

1. Redemption.

Where, before the recording of plaintiff’s deed, the grantor’s execution creditors had bought in the land at an execution sale and the defendants had bought the grantor’s equity of redemption at a subsequent sale, and, after the recording of plaintiff’s deed, defendants purchased the interest of the execution creditors and received a sheriff’s deed, defendants were bona fide purchasers within the meaning of KRS 382.270 , since their purchase of the interest of the execution creditors amounted to a redemption, and the title under the sheriff’s deed related back to the time when the execution was levied and the lien created. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

2. Conveyance to Purchaser.

Act directing sheriff to convey to purchaser authorized him to convey directly to transferee of purchaser. Jamison v. Tudor, 42 Ky. 355 , 1843 Ky. LEXIS 24 ( Ky. 1843 ) (decided under prior law).

Sheriff was authorized to convey land to purchaser without production of certificate that purchase money had been paid, there being no such requirement in the law. Thomas' Adm'r v. Thomas' Adm'x, 87 Ky. 343 , 10 S.W. 282, 10 Ky. L. Rptr. 223 , 1888 Ky. LEXIS 125 ( Ky. 1888 ) (decided under prior law).

3. — Title Relates Back.

Sheriff’s deed to purchaser of land at execution sale related back to day when lien was created, effectuated lien, and was superior to sheriff’s deed, bearing earlier date, to purchaser who bought under subsequent levy on same land. Greer v. Wintersmith, 85 Ky. 516 , 4 S.W. 232, 9 Ky. L. Rptr. 96 , 1887 Ky. LEXIS 71 ( Ky. 1887 ) (decided under prior law).

A sheriff’s deed relates back to the time of levy, and the title vests as of the date of the levy under which the sale was made. Bailey v. Bailey, 286 Ky. 582 , 151 S.W.2d 374, 1941 Ky. LEXIS 298 ( Ky. 1941 ).

4. — Authority to Convey.

Deed by jailer after his sale of land under execution directed to sheriff was void, since process can be executed only by officer to whom it is directed, and execution by another is nullity. Parsons v. Dills, 159 Ky. 471 , 167 S.W. 415, 1914 Ky. LEXIS 815 ( Ky. 1914 ).

Sheriff who was successor, although not immediate successor, to sheriff who made execution sale was authorized to make conveyance. Hudson v. Hudson, 253 Ky. 814 , 70 S.W.2d 935, 1934 Ky. LEXIS 750 ( Ky. 1934 ).

5. — Interest Transferred.

Sheriff’s deed transferred to purchaser only whatever interest execution debtor owned or had in the land, and did not purport to convey and other interest. Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ).

6. — Mistake in Deed.

Although sheriff’s deed, by mistake, conveyed only interest of one of joint owners, assignee of purchaser was not divested of equitable title obtained by execution sale of entire tract owned by defendants jointly, and by proper proceedings deed could be corrected. Jones v. Webb, 59 S.W. 858, 22 Ky. L. Rptr. 1100 (1900).

7. — Encumbered Land.

Sheriff’s deed to land which was encumbered at time of sale was unwarranted and passed no rights, but did not vitiate sale, where sheriff had right to levy and sell property for debt. Hazard Lumber & Supply Co. v. Horn, 228 Ky. 554 , 15 S.W.2d 492, 1929 Ky. LEXIS 624 ( Ky. 1929 ).

8. — Death of Debtor.

Sale of land after death of owner under an execution levy made in his lifetime was void, and sheriff’s deed to purchaser was also void. Burge's Adm'r v. Brown, 68 Ky. 535 , 1869 Ky. LEXIS 46 ( Ky. 1869 ) (decided under prior law).

Sheriff was authorized to make conveyance of land to purchaser after death of execution debtor without bringing in his heirs, as required in judicial sales, since sheriff conveyed as ministerial officer in own name. Thomas' Adm'r v. Thomas' Adm'x, 87 Ky. 343 , 10 S.W. 282, 10 Ky. L. Rptr. 223 , 1888 Ky. LEXIS 125 ( Ky. 1888 ) (decided under prior law).

9. — Tender of Redemption.

Tender of money for land sold within year, when it was redeemable, rendered ineffectual a subsequent deed by the sheriff to the purchaser. Sweeney v. Craddocks, 45 Ky. 590 , 1846 Ky. LEXIS 70 ( Ky. 1846 ) (decided under prior law).

10. — Mistake in Acreage.

Notwithstanding sheriff’s deed to land sold purported to convey 52 acres, whereas only 511/2 acres had been sold, deed was good at least for land sold, even if a nullity as to excessive one half of an acre. Reid v. Heasley, 39 Ky. 324 , 1840 Ky. LEXIS 23 ( Ky. 1840 ) (decided under prior law).

11. — Evidence of Title.

Sheriff’s deed, unaccompanied by judgment or other record evidence of sheriff’s authority to sell, was not admissible in evidence to show title. Price v. Lane, 6 Ky. Op. 133, 1872 Ky. LEXIS 458 (Ky. Ct. App. Dec. 20, 1872) (decided under prior law).

Deed by deputy sheriff was admissible as evidence that grantee entered and held under claim of title and was competent evidence. Boyd v. Mercer, 10 Ky. Op. 590, 1880 Ky. LEXIS 245 (Ky. Ct. App. Apr. 26, 1880) (decided under prior law).

12. — Delay in Acknowledgment.

Failure to have sheriff’s deed acknowledged for more than two years after it was made did not invalidate it, as the purchaser was giving the execution debtor a chance to redeem, and one who accepted a mortgage after the levy and before the sale was not prejudiced by the delay. Greer v. Howard, 11 Ky. Op. 755, 4 Ky. L. Rptr. 350 , 1882 Ky. LEXIS 296 (Ky. Ct. App. Oct. 17, 1882) (decided under prior law).

13. — Deputy Sheriff.

Deed by deputy sheriff for land sold by him was valid. Reardon v. Searcy's Heirs, 5 Ky. 202 , 1810 Ky. LEXIS 88 ( Ky. 1810 ) (decided under prior law).

Deed executed in name of deputy and not in name of principal marshal, reciting the execution, purchase, and consideration, was valid and passed title by operation of law. Winslow v. Austin, 28 Ky. 408 , 1831 Ky. LEXIS 54 ( Ky. 1831 ) (decided under prior law).

Where deputy sheriff who made execution sale subsequently became sheriff, deed was properly executed by him after he became sheriff, without designation of his office, and could be deemed completion of his sale as deputy. Jamison v. Tudor, 42 Ky. 355 , 1843 Ky. LEXIS 24 ( Ky. 1843 ) (decided under prior law).

Deed to land sold upon execution made in name of sheriff by deputy who made sale was sufficient. Young v. Smith, 49 Ky. 293 , 1850 Ky. LEXIS 93 ( Ky. 1850 ) (decided under prior law).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Sheriff’s Deed, Form 151.35.

426.260. Motion for possession by purchaser — Notice — Judgment.

  1. The purchaser of land sold under execution and not redeemed, after obtaining a conveyance therefor may, upon ten (10) days’ notice in writing to the defendant in the execution, whose lands have been sold, enter a motion on the docket in the circuit court of the county where the land is situated for a judgment for the possession of the land. If, upon the hearing of the motion, the court is of the opinion that the purchaser is entitled to the possession, it shall render a judgment accordingly and award possession, with costs. The proceedings on the motion shall be as provided in KRS 418.005 to 418.015 , and Rule 6.03 of the Rules of Civil Procedure.
  2. The notice referred to in subsection (1) of this section shall be in substance as follows:

“A B to C D, notice: “You are hereby notified that I will, on the day of , 19, enter a motion on the docket of the circuit court for a judgment for the possession of certain lands situated in county, Kentucky, which lands are described as follows, viz.: (description), being the same lands bought by me at a sale duly held under execution which issued from the office of the clerk of court in favor of , plaintiff, vs , defendant. (See execution book , execution No. ) , A B.”

Click to view

History. 1689: amend. Acts 1976, ch. 91, § 37.

NOTES TO DECISIONS

1. Motion for Possession.

Judgment on proceedings under this section is conclusive between parties as to right to possession of land so long as it remains in force. Combs v. Johnson, 80 S.W. 506, 26 Ky. L. Rptr. 12 (1904).

Notice to secure possession is sufficient if it follows the form prescribed in this section. Combs v. Miller, 149 Ky. 546 , 149 S.W. 906, 1912 Ky. LEXIS 664 ( Ky. 1912 ). See Jackson v. Roberts, 95 Ky. 410 , 25 S.W. 879, 15 Ky. L. Rptr. 831 , 1894 Ky. LEXIS 36 ( Ky. 1894 ); Kennedy v. Weber, 64 S.W. 514, 23 Ky. L. Rptr. 879 , 1901 Ky. LEXIS 450 (Ky. Ct. App. 1901); Read v. Cochran, 71 S.W. 487, 24 Ky. L. Rptr. 1412 (1903).

Person whose land has been sold under execution cannot be disturbed in possession, enjoyment, and control of it until he has been evicted by writ of possession. Torian v. Caldwell, 167 Ky. 670 , 181 S.W. 373, 1916 Ky. LEXIS 478 ( Ky. 1916 ).

Since motion and notice supplant petition, statutory provisions must be strictly met. Whitaker v. Holcomb, 210 Ky. 836 , 276 S.W. 973, 1925 Ky. LEXIS 791 ( Ky. 1925 ).

This section refers only to executions issued by the clerk upon application of parties, and not to executions on sale bonds issued upon order of court in pending equitable action. Hill v. Riggins, 213 Ky. 429 , 281 S.W. 157, 1926 Ky. LEXIS 532 ( Ky. 1926 ).

This section applies only to executions and not to judicial sales. Potter v. Pikeville Nat'l Bank, 248 Ky. 596 , 59 S.W.2d 529, 1933 Ky. LEXIS 277 ( Ky. 1933 ).

2. — Defenses.

Defense to motion for writ need not be made in writing in view of KRS 418.015 , referred to in this section, providing that motion may be heard upon or without written pleadings. Kennedy v. Weber, 64 S.W. 514, 23 Ky. L. Rptr. 879 , 1901 Ky. LEXIS 450 (Ky. Ct. App. 1901).

Defense to motion for writ of possession, which not only averred that land had been redeemed but also that movant had fraudulently obtained deed from sheriff, and sought its cancellation, was triable by chancellor in equity in view of KRS 418.015 . Ashcraft v. Bowling, 193 Ky. 31 , 234 S.W. 945, 1921 Ky. LEXIS 180 ( Ky. 1921 ).

Written defense to motion for writ of possession which stated conclusions rather than primary facts, but which averred that movant had been repaid and had fraudulently procured deed, was sufficient on appeal. Ashcraft v. Bowling, 193 Ky. 31 , 234 S.W. 945, 1921 Ky. LEXIS 180 ( Ky. 1921 ).

3. — Answer Delayed.

Answer to motion for writ of possession pleading that title was in pleader and that land was mortgaged, although not tendered until term succeeding the motion, should have been received, where pleader’s advanced age and feebleness prevented earlier filing. Wilson v. Flanders, 114 Ky. 534 , 71 S.W. 426, 24 Ky. L. Rptr. 1302 , 1903 Ky. LEXIS 6 ( Ky. 1903 ).

4. — Notice.

Notice of motion for possession of land was sufficient, although it did not refer to any judgment or state that land had not been redeemed or was subject to redemption or that purchaser had obtained deed from sheriff. McGhee v. Sutherland, 84 Ky. 198 , 1 S.W. 5, 8 Ky. L. Rptr. 87 , 1886 Ky. LEXIS 52 ( Ky. 1886 ) (decided under prior law).

Sufficiency of notice could not be questioned by persons who came into case by petition setting up their claim to the land. Read v. Cochran, 71 S.W. 487, 24 Ky. L. Rptr. 1412 (1903).

Notice of motion was fatally defective where it failed to show that movant claimed possession pursuant to execution sale, did not state in whose favor or against whom execution was issued, or execution book in which it was recorded, or court or clerk’s office from which it issued. Whitaker v. Holcomb, 210 Ky. 836 , 276 S.W. 973, 1925 Ky. LEXIS 791 ( Ky. 1925 ).

Notice of motion, giving name of action, of party issuing, and date of execution, and containing requirements of statute, except that execution book and number were not mentioned in parentheses, was sufficient. Smith v. Smith, 255 Ky. 703 , 75 S.W.2d 351, 1934 Ky. LEXIS 316 ( Ky. 1934 ).

5. — Parties.

Infants, who filed petition claiming ownership by inheritance in land for which writ was sought, should have been made parties and their rights determined. Whitaker v. Holcomb, 210 Ky. 836 , 276 S.W. 973, 1925 Ky. LEXIS 791 ( Ky. 1925 ).

Motion for writ of possession was properly directed to execution debtor and his children, although children were not defendants in the execution, where children allegedly had possession under fraudulently given title bond. Gilbert v. Watts, Ritter & Co., 249 Ky. 27 , 60 S.W.2d 142, 1933 Ky. LEXIS 476 ( Ky. 1933 ).

Although tenants’ eviction via writ of possession without notice apparently complied with Kentucky law, the federal Protecting Tenants at Foreclosure Act (PTFA) preempted that law as less protective of tenants, and violations of PTFA could establish a state-law wrongful eviction claim even without a federal private right of action. Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 2014 FED App. 0030P, 2014 U.S. App. LEXIS 2332 (6th Cir. Ky. 2014 ).

6. — Proof of Conveyance.

Writ of possession should not be granted to purchasers at execution sale of land where it was not shown that they had obtained conveyance. Scott v. Powers, Little & Co., 78 S.W. 408, 25 Ky. L. Rptr. 1640 (1904).

Writ should not be granted where, on hearing of motion, movant did not produce conveyance by sheriff to property sold under execution. Whitaker v. Holcomb, 210 Ky. 836 , 276 S.W. 973, 1925 Ky. LEXIS 791 ( Ky. 1925 ).

7. — Mortgaged Land.

On showing that the land sold under execution was mortgaged, purchasers were not entitled to possession, but had only lien subordinate to mortgage lien. Wilson v. Flanders, 114 Ky. 534 , 71 S.W. 426, 24 Ky. L. Rptr. 1302 , 1903 Ky. LEXIS 6 ( Ky. 1903 ).

8. — Fraud by Debtor.

Writ of possession was properly awarded against execution debtor’s grantee and his tenant, whose title and possession were derived from foreclosure fraudulently designed to defeat rights of execution creditor. Combs v. Miller, 149 Ky. 546 , 149 S.W. 906, 1912 Ky. LEXIS 664 ( Ky. 1912 ).

9. — Debtor’s Limited Interest.

Where execution was levied upon land in which execution debtor had only dower rights and undivided interest in remainder, it was error, after execution sale, to give judgment awarding purchaser all of land. Stevenson v. Riddell, 68 S.W. 649, 24 Ky. L. Rptr. 404 , 1902 Ky. LEXIS 316 (Ky. Ct. App. 1902).

10. — Possession by Debtor’s Grantees.

Writ of possession should not be granted to execution creditor as against execution debtor’s children, holding possession under title bond supported by adequate consideration and given, without fraudulent intent, before execution debtor incurred the debt. Gilbert v. Watts, Ritter & Co., 249 Ky. 27 , 60 S.W.2d 142, 1933 Ky. LEXIS 476 ( Ky. 1933 ).

11. — Sale Improperly Advertised.

Writ of possession was erroneously granted where sheriff’s return showed that sale was advertised for only ten days next preceding day of sale. Scott v. Powers, Little & Co., 78 S.W. 408, 25 Ky. L. Rptr. 1640 (1904).

12. — Judgment Fraudulently Obtained.

If judgment for possession of land was obtained by fraud, aggrieved party’s remedy is by action under KRS 394.295 to vacate or modify the judgment. Combs v. Johnson, 80 S.W. 506, 26 Ky. L. Rptr. 12 (1904).

13. — Appeal.

A person claiming a life estate and remainder interest may not object on appeal that the motion for possession could not be maintained before the termination of the life estate where no such objection was made in the original proceeding. Smith v. Hall, 44 S.W. 125, 19 Ky. L. Rptr. 1662 (1898).

14. — — Chancellor’s Findings.

Findings of chancellor on question of evidence did not have weight of verdict of properly instructed jury so as not to be reversible unless flagrantly against weight of evidence, since motion for writ, triable by chancellor, was met by purely equitable defense, and was determinable under KRS 418.015 according to law and rules of equity. Scott v. Mitchell, 39 S.W. 507, 19 Ky. L. Rptr. 218 (1897).

Research References and Practice Aids

Cross-References.

Writ of forcible detainer, KRS 383.200 to 383.285 .

Kentucky Law Journal.

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Bond of Purchaser of Property Sold by Order of Court, Form 151.15.

426.270. Proceedings for possession if defendant had no title—Damages.

If, upon the trial of the motion provided for in KRS 426.260 , it appears that the defendant had no title to the land sold under execution, the court may set the sale aside, quash the return of the officer, and award execution for the debt as if no sale had been made. If the land sold had been given up by the defendant to the officer for levy and sale and the sale is set aside, the court shall render judgment against the defendant for ten percent (10%) damages upon the amount of the execution, including interest and cost.

History. 1690.

NOTES TO DECISIONS

1. Determination of Title.

Where land, which was not in fact owned by execution defendants, was sold under execution as their property, execution plaintiffs, even if purchasers, may move to vacate sale and, upon trial of motion, title may be determined. Bent v. Maupin, 86 Ky. 271 , 5 S.W. 425, 9 Ky. L. Rptr. 469 , 1887 Ky. LEXIS 113 ( Ky. 1887 ) (decided under prior law).

426.280. Proceedings for possession if title of defendant equitable or encumbered.

If it appears in the proceedings provided for in KRS 426.260 , that the title of the defendant to the land sold was only equitable, or the land was encumbered by mortgage or lien, the court shall, if the purchaser requires it, subject the land to the payment of the debt of the execution creditor in the same manner as if there was a return of no property found. The court may cause such pleadings to be filed and parties brought before the court as may be necessary to a final equitable judgment in respect to the rights of all parties interested.

History. 1691.

NOTES TO DECISIONS

1. Proceedings for Possession.

On showing that land sold under execution was mortgaged, chancellor, under subsection (6) of KRS 426.290 , in equitable action might preserve lien and protect parties, or under this section on motion for writ of possession might require needed pleadings for final equitable judgment on rights of interested parties. Wilson v. Flanders, 114 Ky. 534 , 71 S.W. 426, 24 Ky. L. Rptr. 1302 , 1903 Ky. LEXIS 6 ( Ky. 1903 ).

This section refers to equitable proceedings to subject equitable interests or encumbered land which has been sold under execution and not to proceedings to subject land which is not subject to execution. People's Trust Co. v. Deweese, 143 Ky. 730 , 137 S.W. 201, 1911 Ky. LEXIS 473 ( Ky. 1911 ).

2. — Right to Lien.

Court should not award writ of possession to purchaser of encumbered property at execution sale, but should proceed under this section to enforce lien, if purchaser desires it. Kennedy v. Weber, 64 S.W. 514, 23 Ky. L. Rptr. 879 , 1901 Ky. LEXIS 450 (Ky. Ct. App. 1901).

Since purchaser at execution sale of encumbered property only obtains lien thereon, he could not obtain possession by writ, but is relegated to action to enforce his and prior liens, making prior lienholders parties. Whitaker v. Holcomb, 210 Ky. 836 , 276 S.W. 973, 1925 Ky. LEXIS 791 ( Ky. 1925 ).

Judgment creditor purchasing realty at execution sale, which realty was purportedly encumbered so that creditor could only obtain a lien which would not entitle him to possession, was entitled to maintain suit for writ of possession under this section. McCormack v. Moore, 273 Ky. 724 , 117 S.W.2d 952, 1938 Ky. LEXIS 714 ( Ky. 1938 ).

3. — Erroneous Grant of Possession.

Writ of possession was erroneous, where at time of execution sale mortgage encumbered the land, but it was not void, since court had jurisdiction to grant it or take other proceedings, and hence writ bound owner who did not appeal from judgment awarding it, or have it modified or vacated. Matney v. Ratliff, 199 Ky. 508 , 251 S.W. 634, 1923 Ky. LEXIS 871 ( Ky. 1923 ).

4. — Appeal.

Objection that writ of possession should not be ordered because land was encumbered by mortgage could not be first raised in Court of Appeals, despite contention that record at trial, which was part of record on motion for writ, disclosed the mortgage. Smith v. Smith, 255 Ky. 703 , 75 S.W.2d 351, 1934 Ky. LEXIS 316 ( Ky. 1934 ).

Research References and Practice Aids

Cross-References.

Encumbered property of defaulting public officers, KRS 135.120 .

426.290. Sale of encumbered property under execution — Rights of purchaser, creditor — Redemption — Bond of purchaser of personalty — Control of courts.

  1. If the defendant in an execution owns the legal title to any real or personal property on which a bona fide encumbrance created prior to the execution lien exists, the interest of the defendant in the property may be levied on and sold, subject to the encumbrance.
  2. The purchaser at the sale shall acquire a lien on such property for the purchase money, and interest at the rate of ten percent (10%) per annum from the day of sale until paid, subject to any prior encumbrance.
  3. Any other creditor, whether by judgment or otherwise, may, after such execution and sale, by equitable proceedings, subject the encumbered property to sale, and, after satisfying prior liens, have his demand satisfied out of the proceeds of the residue. The proceedings in equity shall be instituted before the purchaser has, by suit, enforced the lien provided for in subsection (2) of this section.
  4. The defendant in the execution may redeem the property sold by paying the original encumbrance, with legal interest thereon, and by paying the purchaser his purchase money, with ten percent (10%) per annum interest thereon.
  5. The purchaser of encumbered movable property shall, before possession is delivered to him, give an obligation with good surety payable to the encumbrancer and the owner, stipulating that the property shall not be removed out of the county and shall be preserved and forthcoming, unavoidable accidents excepted, to answer the encumbrance, and for redemption, and deliver the obligation to the officer to be returned with the execution.
  6. Courts of equity shall have control of all encumbered property sold under execution, and may make all needful orders for the preservation and forthcoming of the property and its issues and profits, to satisfy the encumbrance and to secure the rights of others.

History. 1709.

NOTES TO DECISIONS

1. Sale of Encumbered Property.

Subsection (2) of KRS 426.500 does not apply to sales under this section, but only to sales where property is not divisible and title passes by sale. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909).

The provisions of this section are not applicable where the purpose of the sale was to satisfy the lien against the land and, therefore, to extinguish it. Marcum v. Thompson, 222 Ky. 702 , 2 S.W.2d 392, 1928 Ky. LEXIS 241 ( Ky. 1928 ).

It was duty of sheriff to sell encumbered real estate of execution debtors subject to encumbrances. West v. Criscillis, 242 Ky. 549 , 46 S.W.2d 1082, 1932 Ky. LEXIS 311 ( Ky. 1932 ).

Though encumbered, real property of execution defendants was liable to execution. West v. Criscillis, 242 Ky. 549 , 46 S.W.2d 1082, 1932 Ky. LEXIS 311 ( Ky. 1932 ).

Though stock of merchandise was mortgaged, execution could be levied upon debtor’s undivided one-half interest therein. Farmers' State Bank v. Evans, 258 Ky. 660 , 80 S.W.2d 830, 1935 Ky. LEXIS 219 ( Ky. 1935 ).

An execution sale of judgment debtor’s property to such debtor, which property was encumbered by a lien prior to that created by execution levy, was not void, but voidable. Burton v. McCoun, 304 Ky. 569 , 201 S.W.2d 699, 1947 Ky. LEXIS 672 ( Ky. 1947 ).

2. — Rights of Purchaser.

Purchaser at execution sale of mortgaged land acquired only lien thereon for purchase money and ten percent interest. Forrest v. Phillips, 59 Ky. 194 , 1859 Ky. LEXIS 77 ( Ky. 1859 ) (decided under prior law).

Execution purchaser of mortgaged lands took only lien for purchase money and interest, convertible into good title by suit to remove prior encumbrances previous to equitable proceedings by other creditors. Hinton v. Mitchell, 62 Ky. 382 , 1 Duv. 382, 1864 Ky. LEXIS 93 ( Ky. 1864 ), overruled, Bondurant v. Owens, 67 Ky. 662 , 1868 Ky. LEXIS 215 (1868), overruled in part, Bondurant v. Owens, 67 Ky. 662 , 1868 Ky. LEXIS 215 (1868) (decided under prior law).

Upon sale purchaser did not acquire title to the property, but merely lien thereon for purchase money, and interest at ten per cent from day of sale until paid. Atkins v. Emison, 73 Ky. 9 , 1873 Ky. LEXIS 43 ( Ky. 1873 ) (decided under prior law).

Levy upon encumbered property created lien in same manner as if it were unencumbered, as against contention that statutory provisions that purchaser should acquire lien for his purchase money meant that execution plaintiff acquired lien only by sale of encumbered property. Whitehead v. Woodruff, 74 Ky. 209 , 1874 Ky. LEXIS 26 ( Ky. 1874 ) (decided under prior law).

Where president of corporation paid debt due by corporation to one who held purchase money lien on its land, he became holder of such lien by subrogation and subsequent execution purchaser of land acquired only lien thereon, enforceable by sale. Attay v. Knox Gem Coal Co., 110 S.W. 345, 33 Ky. L. Rptr. 327 (1908).

Where mortgaged property is sold under execution, purchaser acquires lien on property for purchase money and interest and, unless execution debtor redeems property, lien is enforceable in equity. Davis v. Gott, 130 Ky. 486 , 113 S.W. 826, 1908 Ky. LEXIS 303 ( Ky. 1908 ).

In a purchase under this section, the purchaser does not acquire title to the property but simply acquires a lien on the property for his purchase money together with interest due from the date of the sale to the date he is repaid. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909). See Due v. Bankhardt, 151 Ky. 624 , 152 S.W. 786, 1913 Ky. LEXIS 556 ( Ky. 1913 ).

Execution purchaser did not acquire title but merely acquired lien subject to encumbrance which was on land at time of levy. Likens v. Pate, 160 Ky. 319 , 169 S.W. 734, 1914 Ky. LEXIS 446 ( Ky. 1914 ).

Execution purchaser of encumbered land acquires only lien with right to enforcement thereof. Hazard Lumber & Supply Co. v. Horn, 228 Ky. 554 , 15 S.W.2d 492, 1929 Ky. LEXIS 624 ( Ky. 1929 ). See Weber v. Gardiner, 80 S.W. 481, 26 Ky. L. Rptr. 44 (1904); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Sullivan Machinery Co. v. Leckieville Land Co., 228 Ky. 216 , 14 S.W.2d 761, 1929 Ky. LEXIS 512 ( Ky. 1929 ).

The purchase of encumbered land at an execution sale does not pass title to the purchaser but merely creates a lien in his favor for the purchase price and interest. Commodari v. Hart-Commodari Const. Co., 262 Ky. 774 , 91 S.W.2d 8, 1936 Ky. LEXIS 84 ( Ky. 1936 ). See Roemer v. Mottley, 164 Ky. 313 , 175 S.W. 645, 1915 Ky. LEXIS 381 ( Ky. 1915 ); Mottley v. Roemer, 166 Ky. 579 , 179 S.W. 581, 1915 Ky. LEXIS 738 ( Ky. 1915 ); Maynard v. Thompson, 193 Ky. 130 , 234 S.W. 959, 1921 Ky. LEXIS 186 ( Ky. 1921 ); Hall v. Commonwealth, 249 Ky. 290 , 60 S.W.2d 625, 1933 Ky. LEXIS 515 ( Ky. 1933 ).

Where timber sold under execution was encumbered by a mortgage lien, the purchaser merely acquired a lien thereon which he could enforce only in a court of equity. Keesee v. Smith, 289 Ky. 609 , 159 S.W.2d 56, 1941 Ky. LEXIS 38 ( Ky. 1941 ).

When there was a mortgage on property at the time the purchaser at a sheriff’s sale received his deed, the purchaser acquired only a lien against the property enforceable in a court of equity. Snyder v. Snyder, 297 S.W.2d 758, 1956 Ky. LEXIS 22 ( Ky. 1956 ).

3. — — Prior Unrecorded Mortgage.

Execution purchaser of mortgaged land acquired only lien thereon, notwithstanding execution defendant had surrendered the land to the sheriff in writing, without fraudulent representations, but without notifying him of recorded mortgage, and sheriff had sold land as unencumbered. Forrest v. Phillips, 59 Ky. 194 , 1859 Ky. LEXIS 77 ( Ky. 1859 ) (decided under prior law).

Since law that provided that a mortgage conveying legal or equitable property shall be valid against a purchaser for valuable consideration without notice, until such mortgage is acknowledged or recorded, implied that mortgages, though unrecorded, were not void, but were valid against purchaser at sale under execution, as well as at private sale, when notice had been given, holder of unrecorded chattel mortgage given before execution was delivered to officer could arrest sale under execution notwithstanding creditor had no notice of mortgage before levy, where mortgagee asserted his rights before sale. Baldwin v. Crow, 86 Ky. 679 , 7 S.W. 146, 9 Ky. L. Rptr. 836 , 1888 Ky. LEXIS 24 ( Ky. 1888 ) (decided under prior law).

4. — — Prior Unrecorded Deed.

Title taken by purchaser under execution was superior to that of holder of deed, which was unrecorded when executions were levied and of which purchaser had no notice before debt to execution creditor was incurred. Graham v. Samuel, 31 Ky. 166 , 1833 Ky. LEXIS 43 ( Ky. 1833 ) (decided under prior law).

Title of purchaser at execution sale of land was inferior to that of holder of unrecorded conveyance where purchaser received notice of conveyance immediately before sale and where grantee’s heirs, through his tenants, were in possession of land. Morton v. Robards, 34 Ky. 258 , 1836 Ky. LEXIS 66 ( Ky. 1836 ) (decided under prior law).

Notice of unrecorded deed received by purchaser after purchase, even if execution creditor was purchaser, did not affect him, but purchase gave him inchoate legal title, which he had right to perfect by procuring conveyance from sheriff. Low & Whitney v. Blinco, 73 Ky. 331 , 1874 Ky. LEXIS 55 ( Ky. 1874 ) (decided under prior law).

Purchaser at execution sale, who has no notice of title bond or deed which has not been timely recorded, will be protected even in equity. Low & Whitney v. Blinco, 73 Ky. 331 , 1874 Ky. LEXIS 55 ( Ky. 1874 ) (decided under prior law).

Title of execution creditor who purchased at execution sale of land was inferior to that of holder of deed, not timely recorded, where, before sale, deed was recorded and creditor received notice of it. Low & Whitney v. Blinco, 73 Ky. 331 , 1874 Ky. LEXIS 55 ( Ky. 1874 ) (decided under prior law).

5. — — Executory Sales Contract.

Land possessed by vendee under executory contract of sale was subject to levy and sale under execution against vendor. Doe on Dem. Riley v. Million, 27 Ky. 395 , 1830 Ky. LEXIS 288 ( Ky. 1830 ) (decided under prior law).

Title of purchaser at execution sale of land was inferior to that of vendee whose deed was derived from prior executory contract of sale, where purchaser had notice of such contract before execution sale. Chinn v. Butts, 33 Ky. 547 , 1835 Ky. LEXIS 163 ( Ky. 1835 ) (decided under prior law).

Title of purchaser at execution sale of land was superior to rights of holder of executory contract of sale, where neither execution creditor nor purchaser had notice of contract until after sale had been made and payment made or secured, but before sheriff’s deed was delivered. Halley v. Oldham, 44 Ky. 233 , 1844 Ky. LEXIS 110 ( Ky. 1844 ) (decided under prior law).

Title of purchaser of land at execution sale was superior to rights of vendee claiming under executory contract of sale, entered into few days before judgments were rendered and conveyance to vendee after levy of execution, where it was shown that such sale and conveyance were fraudulent as to creditors. Daniel v. McHenry, 67 Ky. 277 , 1868 Ky. LEXIS 118 ( Ky. 1868 ) (decided under prior law).

Verbal purchase of land, without paying any purchase money, few days before executions were levied did not invest purchaser with any legal or equitable title, and execution liens were not supplanted by subsequent making of deed. Jones v. Allen, 88 Ky. 381 , 11 S.W. 289, 10 Ky. L. Rptr. 962 , 1889 Ky. LEXIS 46 ( Ky. 1889 ) (decided under prior law).

6. — — Mechanic’s Lien.

Where suit to enforce mechanic’s lien was pending when another creditor had execution levied upon land and sold, sale was not vitiated by prior mechanic’s lien suit, but transferred title to purchaser subject to such suit. Glenn v. Coleman, 42 Ky. 133 , 1842 Ky. LEXIS 123 ( Ky. 1842 ) (decided under prior law).

7. — Enforcement of Lien.

Where, after execution sale of mortgaged land, execution defendants failed to redeem, execution purchaser’s remedy to collect his money was by equitable suit to enforce lien, joining all interested parties. Atkins v. Emison, 73 Ky. 9 , 1873 Ky. LEXIS 43 ( Ky. 1873 ) (decided under prior law).

Levy of execution on mortgaged property created lien, enforceable by sale of land under execution or by making execution purchaser party to equitable proceeding so as to enforce his lien simultaneously with subjecting land to mortgage lien. Van Meter v. Savage, 60 S.W. 646, 22 Ky. L. Rptr. 1476 (1901).

Upon execution sale of land encumbered by liens and subject to homestead rights, purchaser acquires lien subject to such encumbrances and may, by suit joining lienholders, have sale to satisfy first lien, then homestead, and finally execution debt. Weber v. Gardiner, 80 S.W. 481, 26 Ky. L. Rptr. 44 (1904).

Sale under execution is not necessary to validity of execution lien upon encumbered land, but execution plaintiff who has levied may sue in equity based upon levy, joining encumbrancers, and court may order sale and make orders and judgment to protect interested parties. Garrison v. Clark, 151 Ky. 565 , 152 S.W. 581, 1913 Ky. LEXIS 536 ( Ky. 1913 ).

Levy upon and sale of mortgaged lands vested execution purchasers with lien for amount of bid subject to mortgages, and, in enforcing mortgage liens, court should determine rights of execution purchasers. Garrard v. Hibbard, 152 Ky. 672 , 153 S.W. 947, 1913 Ky. LEXIS 699 ( Ky. 1913 ).

An execution creditor could bring suit in equity to enforce his execution lien, making all adverse claimants parties, and was not absolutely required to have a sale of the property under the execution levy to satisfy his claim. Hodges v. Quire, 295 Ky. 78 , 174 S.W.2d 9, 1943 Ky. LEXIS 209 ( Ky. 1943 ).

8. — — Time of Action.

Since purchaser at execution sale of land encumbered by lien is mere lienholder, having present right of action derived from the statute, time limitation fixed by subsection (2) of KRS 413.120 relating to liabilities created by statute bars action to enforce lien after five (5) years from time lien is created, notwithstanding prior lien has not matured. Due v. Bankhardt, 151 Ky. 624 , 152 S.W. 786, 1913 Ky. LEXIS 556 ( Ky. 1913 ).

Action to enforce lien acquired by execution purchaser subordinate to purchase money lien notes was not maintainable until maturity of all notes. Mottley v. Roemer, 166 Ky. 579 , 179 S.W. 581, 1915 Ky. LEXIS 738 ( Ky. 1915 ).

9. — — Parties.

In action to enjoin collection of sale bond and conveyance by sheriff, execution purchaser of land, subject to prior encumbrances, and prior encumbrancers were necessary parties, so that rights could be adjudicated under subsection (6) of this section. Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ).

10. — Priorities of Liens.

Title of execution creditor derived from issuance and levy upon land was superior to that of grantee of execution debtor, where deed was given subsequent to levy but before sale under execution, since lien attached by levy. Butts v. Chinn, 27 Ky. 641 , 1830 Ky. LEXIS 348 ( Ky. 1830 ) (decided under prior law).

Title of execution creditor was inferior to that of purchaser from debtor where creditor, before levy of execution, had notice that purchaser had bought the land long prior to issuance of execution. Lockridge v. Biggerstaff, 63 Ky. 281 , 1865 Ky. LEXIS 67 ( Ky. 1865 ) (decided under prior law).

Title of purchaser at execution sale of land was inferior to lien of mortgage which was given before execution was issued to sheriff but was not recorded until after levy and shortly before sale, where neither execution creditor nor purchaser had notice other than that implied from record. Righter v. Forrester, 64 Ky. 278 , 1866 Ky. LEXIS 140 ( Ky. 1866 ) (decided under prior law).

Lien acquired by purchaser at execution sale of mortgaged land is, in effect, junior mortgage, except that original debt is extinguished and liability of execution debtor no longer exists, purchaser must look to property purchased, and not elsewhere, for reimbursement. Atkins v. Emison, 73 Ky. 9 , 1873 Ky. LEXIS 43 ( Ky. 1873 ) (decided under prior law). See Covington & C. B. Co. v. Walker, 63 Ky. 150 , 1865 Ky. LEXIS 34 ( Ky. 1865 ).

Execution upon land levied, subsequent to attachment of debtor’s life estate in land pursuant to which attaching creditor purchased and received commissioner’s deed of debtor’s estate, was subordinate to lien of attaching creditor. Gibbs v. Davis, 93 Ky. 466 , 20 S.W. 385, 14 Ky. L. Rptr. 500 , 1892 Ky. LEXIS 113 ( Ky. 1892 ) (decided under prior law).

By levy of execution on land, creditor acquires only equity and if, before sale, he has notice of another equity evidenced by bond or unrecorded deed, which is older than equity acquired by execution, the older equity prevails. Bean v. Everett, 56 S.W. 403, 21 Ky. L. Rptr. 1790 , 1900 Ky. LEXIS 445 (Ky. Ct. App. 1900).

On showing that land sold under execution was mortgaged, purchasers were not entitled to possession, but had only lien subordinate to mortgage lien. Wilson v. Flanders, 114 Ky. 534 , 71 S.W. 426, 24 Ky. L. Rptr. 1302 , 1903 Ky. LEXIS 6 ( Ky. 1903 ).

Equitable suit was maintainable to enforce execution lien and for judgment that lien was superior to rights of purchaser of mortgaged land who, before levy and without notice to creditors, had bought land but had not recorded his deed, as against contention that creditor should enforce lien by execution sale. Mason v. Southern Deposit Bank, 229 Ky. 728 , 17 S.W.2d 1022, 1929 Ky. LEXIS 838 ( Ky. 1929 ).

Where execution was delivered to officer with directions to hold it for further instructions and chattel mortgage was given by debtor while execution was so held, sale under subsequent levy of execution was properly made subject to chattel mortgage. Hood v. Pope, 233 Ky. 749 , 26 S.W.2d 1043, 1930 Ky. LEXIS 656 ( Ky. 1930 ).

Mortgage delivered to mortgagee subsequent to issuance of execution against mortgagor’s property created lien in mortgagee’s favor inferior to lien of execution creditor, but when execution was returned, its superior lien terminated and inferior lien of mortgagee became superior lien. Webster v. Industrial Acceptance Corp., 234 Ky. 613 , 28 S.W.2d 959, 1930 Ky. LEXIS 237 ( Ky. 1930 ).

A levy of an execution or a sale thereunder on property encumbered by a lien has no greater effect than to give the plaintiff in the execution a lien upon the property inferior, however, to the prior lien. Burton v. McCoun, 304 Ky. 569 , 201 S.W.2d 699, 1947 Ky. LEXIS 672 ( Ky. 1947 ).

Under this section a purchaser of encumbered property at a sheriff’s sale does not acquire title but only acquires a lien; further a purchaser at a sheriff’s sale is not an innocent purchaser simply because he has purchased at a judicial sale or acquired under legal process. A prevalent misconception is that one purchasing at a judicial sale gets something of a superior title simply because of his position. Tabers v. Jackson Purchase Production Credit Asso., 649 S.W.2d 202, 1983 Ky. App. LEXIS 283 (Ky. Ct. App. 1983).

11. — Purchase Price.

In making sale under this section, sheriff cannot receive bid in excess of debt, interest, and costs, for to do so would require defendant to pay ten per cent interest on excess to redeem the property. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909).

Where property is divisible and is sold under this section, the highest price is bid to pay amount of debt, interest and costs and take least number of acres; sheriff should seek bid to take land and pay that amount and, upon receiving such bid, he should ask who would pay that amount and take less number of acres. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909).

12. — Redemption.

Redemption under subsections (2) and (4) of this section extends beyond one (1) year fixed by statute in execution sales of unencumbered lands and may be exercised by defendant during continuance of original encumbrance and lien in favor of purchaser under execution. Wilson v. Flanders, 114 Ky. 534 , 71 S.W. 426, 24 Ky. L. Rptr. 1302 , 1903 Ky. LEXIS 6 ( Ky. 1903 ).

Redemption right of execution defendant where encumbered property is sold is not limited to year, but may be exercised at any time until lien is enforced and property sold under it. Hazard Lumber & Supply Co. v. Horn, 228 Ky. 554 , 15 S.W.2d 492, 1929 Ky. LEXIS 624 ( Ky. 1929 ).

A tender and payment into court of a sum sufficient to satisfy amount of execution and court costs to time of tender satisfied lien of purchaser under execution. Keesee v. Smith, 289 Ky. 609 , 159 S.W.2d 56, 1941 Ky. LEXIS 38 ( Ky. 1941 ).

13. — Bond for Movable Property.

Sheriff was liable to execution defendant and to mortgagee of movable personal property where he did not levy upon and sell the property even as encumbered property, but delivered it to the execution purchaser without taking bond from him pursuant to subsection (5) of this section. Davis v. Gott, 130 Ky. 486 , 113 S.W. 826, 1908 Ky. LEXIS 303 ( Ky. 1908 ).

14. — Attachment Levy.

Although attachment had been levied on land prior to levy of execution, execution creditor could have land sold by officer and purchase it, since debtor was not divested of title by attachment. Oldham v. Scrivener, 42 Ky. 579 , 1843 Ky. LEXIS 75 ( Ky. 1843 ) (decided under prior law).

Where an attachment has been levied on land, it is not liable to seizure and sale under execution issued pending the attachment suit, so as to defeat the attachment. Husbands v. Jones, 72 Ky. 218 , 1872 Ky. LEXIS 35 ( Ky. 1872 ) (decided under prior law).

15. — Mortgaged Land.

Purchaser at execution sale of mortgaged land may assail mortgage or show its payment, and, if such prior lien is removed, entire tract, if necessary, may be sold to satisfy execution lien. Atkins v. Emison, 73 Ky. 9 , 1873 Ky. LEXIS 43 ( Ky. 1873 ) (decided under prior law).

Where mortgaged land which has been sold under execution is sold in equitable action to enforce liens, remnant of mortgaged property or proceeds goes to mortgagor. Atkins v. Emison, 73 Ky. 9 , 1873 Ky. LEXIS 43 ( Ky. 1873 ) (decided under prior law).

16. — Livestock.

Livestock and its offspring, which were subject to mortgage given without fraud by debtor prior to execution against him, were improperly sold under execution. Forman v. Proctor, 48 Ky. 124 , 1848 Ky. LEXIS 41 ( Ky. 1848 ) (decided under prior law).

17. — Leased Property.

Execution, which became operative by delivery to and levy by sheriff before lease was made by execution debtor, overreached lease, and other executions, although becoming operative after making of lease but before sale under execution, were let in and overreached lease. Locke v. Coleman, 20 Ky. 315 , 1827 Ky. LEXIS 24 ( Ky. 1827 ) (decided under prior law).

Since written lease for five years was valid without being recorded, lessee could hold premises despite sale on execution against lessor, paying subsequent rent to purchaser. Casey v. Gregory, 52 Ky. 505 , 1852 Ky. LEXIS 70 ( Ky. 1852 ) (decided under prior law).

18. Notice of Superior Lien.

Although a “lapsed” financing statement may not in itself have been enough to place a sheriff’s execution sale purchaser of a jeep on notice of the lien held by the holder of a subordinate security interest in the jeep, the subordinate security interest holder’s appearance in the judicial proceeding from which the sale arose, together with his nulla bona execution should have placed the execution sale purchaser, as a reasonable man, on notice of the subordinate security interest holder’s claim, and therefore, the security interest holder’s interest in the jeep was valid as against the execution sale purchaser. Tabers v. Jackson Purchase Production Credit Asso., 649 S.W.2d 202, 1983 Ky. App. LEXIS 283 (Ky. Ct. App. 1983).

Opinions of Attorney General.

When a piece of real estate is sold by an execution lien creditor and the property is subject to other mortgages, the master commissioner should announce at the sale that the real property being sold is subject “to the following prior encumbrances;” the master commissioner should then identify the prior encumbrances and state that such liens must be satisfied before the purchaser at the judicial sale can obtain any value from the land sold. OAG 86-84 .

Research References and Practice Aids

Cross-References.

Execution against encumbered property of defaulting public officers, KRS 135.120 .

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Kentucky Law Journal.

Kentucky Survey of Law, Nowka, Commercial Law, 72 Ky. L.J. 337 (1983-84).

426.295. Form of judgment in action for possession of specific personal property.

In an action for the possession of specific personal property, the plaintiff may have judgment for its delivery, if it can be had; and, if not, for its value and for damages for its detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for the return of the property, or its value if a return cannot be had, and damages for the taking and withholding of the property. There shall be no pre-judgment attachment of specific personal property except under the provisions of KRS chapter 425.

History. C.C. 388: trans. Acts 1952, ch. 84, § 1; 1976, ch. 91, § 38.

NOTES TO DECISIONS

1. Possession of Personalty.

In suit for recovery of identical property, if the verdict be for appellant, it should be in the alternative, the property or its value, and damages for its detention. Strubbee v. Cincinnati Railway, 78 Ky. 481 , 1 Ky. L. Rptr. 25 , 1880 Ky. LEXIS 46 ( Ky. 1880 ).

A judgment in an action of claim and delivery for the return of the property or its value is a judgment for money. If the writ fails to produce all the property directly to be restored, the defendant may refuse to accept part of it and sue for the appraised value of the whole. Rennebaum v. Atkinson, 52 S.W. 828, 21 Ky. L. Rptr. 587 , 1899 Ky. LEXIS 310 (Ky. Ct. App. 1899).

Under judgment rendered under this section, judgment claimant has the right to demand the value of the property instead of the property itself, it the latter be tendered in satisfaction of the judgment. Martin v. Ferguson, 111 S.W. 281, 33 Ky. L. Rptr. 761 (1908).

2. — Recovery of Damages.

In an action for the recovery of personal property wrongfully taken under an attachment, and damages for the taking and retention thereof, it appearing that the property was mortgaged, the plaintiff was only entitled to recover damages for the detention up to the date of a judgment of foreclosure, at which time his right of possession ceased, and not up to the time of the trial of his action for damages. Gaar, Scott & Co. v. Lyon, 99 Ky. 672 , 37 S.W. 73, 18 Ky. L. Rptr. 500 , 1896 Ky. LEXIS 126 ( Ky. 1896 ).

Where appellee obtained an order for the delivery of a number of logs claimed by her, and the sheriff seized the property, and judgment by default was rendered awarding the possession of the logs to appellee, and if not to be had, then for $200 damages, it was error to assess the damages without the intervention of a jury, but the erroneous judgment in the alternative in this case was not prejudicial, as the logs were taken by the sheriff. Marcum v. Potter, 64 S.W. 646, 23 Ky. L. Rptr. 954 (1901).

Where a plaintiff suing for the possession of the property gave a bond to secure the performance of the judgment and was given possession of the property, if defendant neglected on obtaining a judgment to have the damages for withholding of the property determined in that action, he is barred of any action therefor on the replevin bond. Mounts v. Murphy, 126 Ky. 803 , 104 S.W. 978, 31 Ky. L. Rptr. 1192 , 1907 Ky. LEXIS 103 ( Ky. 1907 ).

No recovery can be had for damages on a bond executed in an action for claim and delivery, where the action is dismissed without prejudice for want of prosecution on motion of the defendant, and no return of the property is adjudged in that action and no judgment rendered for damages for its detention. Howard v. Wyatt, 145 Ky. 424 , 140 S.W. 655, 1911 Ky. LEXIS 878 ( Ky. 1911 ).

While the claim for damages might have been specifically made in the answer and counterclaim and brought down to date of restitution by amendment in an action to recover possession of a team of mules, harness, and a wagon, the successful defendant took appropriate course to secure a consideration of his claim of damages suffered through the plaintiff’s taking and detention of the property under the order of delivery 15 months before by filing a motion on the day judgment was entered, although perhaps his motion should have been more specific as to the element of damages in order that issues might have been raised thereto. Stimson's Ex'x v. Tharp, 284 Ky. 389 , 144 S.W.2d 1031, 1940 Ky. LEXIS 504 ( Ky. 1940 ).

3. — Recovery of Expenses.

Damages for loss of time and expenses of an attorney’s fee incurred in an effort to regain possession of the property, even if pleaded, which was not done in this case, are not recoverable in claim and delivery action. Kentucky Portland Cement & Coal Co. v. Steckel, 164 Ky. 420 , 175 S.W. 663, 1915 Ky. LEXIS 389 ( Ky. 1915 ).

In an action to recover possession of a stolen automobile and damages for its detention against a bona fide purchaser, the owner was not entitled to recover the expenses which he incurred in recovering the automobile. Bozeman Mortuary Ass'n v. Fairchild, 253 Ky. 74 , 68 S.W.2d 756, 1934 Ky. LEXIS 599 ( Ky. 1934 ).

4. — Assessment of Value.

The law is well settled that, in detinue for several articles, the value of each must be ascertained by a separate finding and the reason of the rule is evident. The judgment is in the alternative, for each article, if to be had, if not, its value, so that after the operation of a distringas, if any one article cannot be had, the court may, on proper application, supersede the distringas, and direct a fieri facias or other writ, for the value only. Buckner v. Haggin, 19 Ky. 59 , 1825 Ky. LEXIS 103 ( Ky. 1825 ) (decided under prior law).

To authorize the jury to assess damages for property illegally taken and detained, there must be some evidence of the value or some description to enable the jury to determine the value from their own knowledge upon the subject. Pharis v. Carver, 52 Ky. 236 , 1852 Ky. LEXIS 22 ( Ky. 1852 ) (decided under prior law).

In action to recover the possession of specific personal property, the jury returned this verdict: “We of the jury find for the defendants.” Thereupon the court rendered judgment for a return of the property, or for $90.00, being the value of the property as proved upon the trial. It was held that the jury should have assessed the value of the property, and their omission to do so made the verdict fatally defective, and the judgment rendered thereon was erroneous. Young v. Parsons, 59 Ky. 499 , 1859 Ky. LEXIS 151 ( Ky. 1859 ) (decided under prior law).

A judgment for a specific thing, in detinue or replevin, entitles the successful party to its value, if it be not restored; that value must be assessed by the jury. Bates v. Buchanan, 65 Ky. 117 , 1867 Ky. LEXIS 28 ( Ky. 1867 ) (decided under prior law).

Where, in an action to recover the value of saw logs alleged to have been sold and delivered, issues were joined as to the number of the logs delivered, and the points at which they were delivered by authority of defendant, instructions were given to the jury, requiring them to ascertain number of logs delivered at a designated place and the number of feet of lumber in said logs. A verdict was rendered ascertaining required information upon which the court rendered judgment fixing the amount of the recovery and said verdict was erroneous as it was in the province of the jury to fix the amount of the recovery, and the court erred in confining them to the ascertainment of the number of feet of lumber delivered. Day Bros. Lumber Co. v. Daniel, 62 S.W. 866, 23 Ky. L. Rptr. 285 (1901).

Where, in an action for the possession of specific articles of furniture, the petition described each article and the value thereof, together with the aggregate value of all the articles, and the judgment for plaintiff provided for the recovery of the several articles according to the separate value of each, and the court left it to the jury to say whether they believed that defendants detained each article, and whether it was worth the price fixed in the petition, the defect in the verdict for plaintiff for the aggregate value, together with damages for detention, because it did not find the separate value of the articles, was not prejudicial. Black Raven Coal Co. v. Edmonson, 108 S.W. 955, 33 Ky. L. Rptr. 3 (1908).

In an action in detinue in which the plaintiff had an order for delivery of staves, the jury returned this verdict: “We, the jury, agree and find for the defendants . . . . . all the amount of these staves.” Whereupon, the court rendered a judgment that the appellees were the owners of the staves in controversy and that their value when taken was $250. Court erred in assessing the value of the staves. New Era Land Co. v. Daniels, 143 Ky. 207 , 136 S.W. 201, 1911 Ky. LEXIS 370 ( Ky. 1911 ).

Where, in an action to recover an automobile as a gift or sale from the donor or vendor, the property was in the possession of plaintiff and she was adjudged the owner thereof and entitled to its possession, the failure of the court to require the jury to assess the value of the property was not prejudicial error since defendants could not insist on plaintiffs surrendering the property and receiving from them its value. Morgan v. Williams, 179 Ky. 428 , 200 S.W. 650, 1918 Ky. LEXIS 231 ( Ky. 1918 ).

5. — Form of Verdict.

In an action to recover the possession of a horse, the jury returned a verdict in favor of the defendant, and fixed the value of the horse at $250. The judgment ought to have been in the alternative for the return of the horse, or its value in case a return could not be had, and damages for the taking and withholding of the horse. Rogers v. Bradford, 71 Ky. 163 , 1871 Ky. LEXIS 32 ( Ky. 1871 ) (decided under prior law).

6. Interest.

Where, at the conclusion of plaintiff’s testimony, the court, upon motion of defendants, instructed the jury to find for the defendants and assess the value of the property taken by the plaintiff from the possession of the defendants at the sum of $2,460 as of December 15, 1892, it was proper for court to adjudge that the defendants recover interest on said sum from December 15, 1892, at the rate of six per cent per annum until paid. Webb v. Phillips, 80 F. 954, 1897 U.S. App. LEXIS 2277 (6th Cir. Ky. 1897 ).

7. — Incomplete Verdict.

Where the verdict in an action of claim and delivery fails to award the property alleged to be in defendant’s possession, he should move to have the jury make a more complete verdict, and he cannot wait until the jury is dismissed and then avail himself of the error. Gambrell v. Gambrell, 130 Ky. 714 , 113 S.W. 885, 1908 Ky. LEXIS 312 ( Ky. 1908 ).

Cited:

Cunningham v. Clay’s Adm’r, 132 Ky. 129 , 116 S.W. 299, 1909 Ky. LEXIS 96 ( Ky. 1909 ); Cartwright v. C. I. T. Corp., 253 Ky. 690 , 70 S.W.2d 388, 1934 Ky. LEXIS 729 ( Ky. 1934 ); Farmers’ State Bank v. Evans, 258 Ky. 660 , 80 S.W.2d 830, 1935 Ky. LEXIS 219 ( Ky. 1935 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

426.300. Specific property — Execution on judgment for.

  1. If a judgment is recovered for a specific thing, the plaintiff may have an execution issued thereon, commanding the proper officer to seize the property, and deliver it to the plaintiff. The plaintiff may, if he so elect, take an execution for the assessed value of the property recovered. In either case, the execution shall embrace the damages assessed for the detention and costs.
  2. The court may, upon satisfactory proof that the property recovered has perished, or that, without the fault of the defendant, it is out of his power to produce it, order the plaintiff to receive the assessed value in lieu of the property.

History. 1665.

NOTES TO DECISIONS

1. Execution for Specific Property.

After recovering judgment for certain articles of personal property or if they are unobtainable for the value as fixed by jury, plaintiff may have execution for specific property, or without demanding delivery or showing that they were unobtainable, may recover the value fixed with ten percent damages pursuant to KRS 21.130 . Cunningham v. Clay's Adm'r, 132 Ky. 129 , 116 S.W. 299, 1909 Ky. LEXIS 96 ( Ky. 1909 ).

Upon judgment for recovery of specific articles of personal property, although action was unaccompanied by order for immediate possession, execution for such articles is obtainable under this section. Halcomb v. Phipps, 194 Ky. 648 , 240 S.W. 363, 1922 Ky. LEXIS 221 ( Ky. 1922 ).

Dismissal of petition seeking possession of automobile and rendition of judgment for defendant upon its counterclaim had effect to adjudging ownership and right to possession to be in defendant. Cartwright v. C. I. T. Corp., 253 Ky. 690 , 70 S.W.2d 388, 1934 Ky. LEXIS 729 ( Ky. 1934 ).

2. — Recovery of Value.

This section having been enacted subsequent to KRS 426.295 prevails over it, and gives execution plaintiff, at election, right to execution for assessed value of property, damages for detention and costs. Martin v. Ferguson, 111 S.W. 281, 33 Ky. L. Rptr. 761 (1908).

After judgment in action for recovery of specific property or its value, plaintiff at his election may have execution for assessed value of thing and not execution for its delivery. Brocking v. O'Bryan, 129 Ky. 543 , 112 S.W. 631, 1908 Ky. LEXIS 187 ( Ky. 1908 ). See Rennebaum v. Atkinson, 52 S.W. 828, 21 Ky. L. Rptr. 587 , 1899 Ky. LEXIS 310 (Ky. Ct. App. 1899).

Cited:

Cartwright v. C. I. T. Corp., 253 Ky. 690 , 70 S.W.2d 388, 1934 Ky. LEXIS 729 ( Ky. 1934 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Prejudgment Seizure Law, Vol. 40, No. 3, July 1976, Ky. Bench & Bar 20.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Execution for Defendant in Action for Specific Personal Property, Form 151.05.

Caldwell’s Kentucky Form Book, 5th Ed., Execution for Plaintiff for Specific Personal Property and Damages, or Assessed Value in Lieu of Property, Form 151.04.

426.310. Livestock — Execution on — Quashed or stayed — Duty and cost of caring for.

  1. If an execution is levied on livestock and no forthcoming or replevin bond is immediately given, the officer shall provide sufficient sustenance for the livestock levied on until it is legally disposed of. The officer shall make a fair estimate of his expenses and collect them, subject to correction by the court. Upon the return of the execution, if either party desires, the court shall fix what the officer shall be allowed for his expenses, which shall be considered a part of the taxed costs in the case and collected accordingly.
  2. If an execution levied on livestock is quashed, enjoined, superseded or suspended, the officer levying it may have his expenses allowed, and issue his fee-bill for and collect his expenses from the plaintiff in the execution. The expenses of the officer, except when the execution is quashed, shall form a part of the costs and be collected from the defendant if the stay or suspension be removed, or, if removed in part only, then in proportion to such part.

History. 1666.

NOTES TO DECISIONS

1. Execution on Livestock.

Officer was liable for damages where he neglected livestock which he had levied on and did not care for it as ordinarily prudent man would care for own property. Vance v. Vanarsdale, 64 Ky. 504 , 1866 Ky. LEXIS 178 ( Ky. 1866 ) (decided under prior law).

426.320. Sales invalid if made by fraud or collusion — Proceedings to set aside — When lien not affected.

  1. Sales made under execution by fraud or collusion may be set aside, in the court where the execution issued, on the motion of any person aggrieved or by petition in equity. If by motion, the proceeding must be commenced within one (1) year from the sale. The parties affected by the motion shall have ten (10) days’ notice in writing, setting forth the grounds relied on for invalidating the sale.
  2. Whenever a sale under execution is quashed, vacated or set aside, for any cause not affecting the validity of the execution, the lien created by the execution or the levy shall not be destroyed or affected but shall remain in full force and effect, and a writ as provided in KRS 426.440 may be issued and the property sold.

History. 1710.

NOTES TO DECISIONS

1. Application.

This section does not apply where judgment debtor had land sold under execution by sheriff and did not claim homestead right, and made no claim that the execution sale was procured under “fraud, covin, or collusion.” Moore v. Sanders, 297 Ky. 13 , 178 S.W.2d 842, 1944 Ky. LEXIS 650 ( Ky. 1944 ).

2. Fraud or Collusion.

To maintain summary proceeding to set aside execution sale of land, it must be shown that sale was by fraud or collusion; mere showing that, by mistake, appraisers did not appraise entire tract would not suffice. Bach v. Whittaker, 109 Ky. 612 , 60 S.W. 410, 22 Ky. L. Rptr. 1226 , 1901 Ky. LEXIS 26 ( Ky. 1901 ).

3. Inadequate Price.

An execution sale will not be set aside for a mere inadequacy of price where there were no claims of fraud. Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ). See Casebolt v. Collinsworth, 219 Ky. 656 , 294 S.W. 181, 1927 Ky. LEXIS 421 ( Ky. 1927 ).

Inadequacy of sale price is not per se a sufficient ground for setting aside an execution sale. McFall v. Rainbow Coal & Feed Co., 301 Ky. 720 , 193 S.W.2d 141, 1946 Ky. LEXIS 554 ( Ky. 1946 ).

4. Sale Never Made.

Averments were insufficient to authorize setting aside of sale under this section, where there was no claim that sale was made by fraud, but evidence tended to prove that no sale was made and that return was false. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

5. Motions.

Proceeding seeking to have sale set aside was sufficient, although the pleadings were designated as “exceptions” and no notice of motion was given, where procedure complied in substance with this section and notice of motion was waived by appearance and response. Feltner v. Colwell, 294 Ky. 581 , 172 S.W.2d 219, 1943 Ky. LEXIS 494 ( Ky. 1943 ).

So-called “exceptions” to execution sale, filed more than three (3) months after date of sale, and charging lack of appraisal before sale, inadequacy of sale price, making of sale for larger tract of land than necessary, irregularity of sale, and inability of sheriff to convey valid title would be treated as motions and given same consideration as a motion to set aside sale for fraud or collusion. McFall v. Rainbow Coal & Feed Co., 301 Ky. 720 , 193 S.W.2d 141, 1946 Ky. LEXIS 554 ( Ky. 1946 ).

6. Invalidation of Sale.
7. — Inadequate Price.

Although mere inadequacy of price would not vitiate execution sale, yet its setting aside was proper where 500 acres worth at least $5,000 were sold for $22.00 to satisfy small judgments, and purchaser was active agent at sale, advertisement disappeared, and small number of persons were informed of or attended sale. Stockton v. Owings, 16 Ky. 256 , 1821 Ky. LEXIS 7 ( Ky. 1821 ) (decided under prior law).

Gross inadequacy of price is ordinarily badge of fraud, but without other evidence conducing to show fraud, validity of sale will not be affected by mere inadequacy of price. Craig v. Garnett's Adm'r, 72 Ky. 97 , 1872 Ky. LEXIS 20 ( Ky. 1872 ) (decided under prior law).

Execution sale will not be vacated for mere inadequacy of price unaccompanied by any fraudulent acts or conduct. Scott's Ex'x v. Scott, 85 Ky. 385 , 3 S.W. 598, 9 Ky. L. Rptr. 363 , 1887 Ky. LEXIS 58 ( Ky. 1887 ) (decided under prior law). See Hart v. Bleight, 19 Ky. 273 , 1826 Ky. LEXIS 51 ( Ky. 1826 ); Daniel v. McHenry, 67 Ky. 277 , 1868 Ky. LEXIS 118 ( Ky. 1868 ).

8. — Time Limitation.

Motion to quash sale because whole tract was sold for amount which, by miscalculation, sheriff announced to be in excess of sum actually due should be made in reasonable time, but was not barred by year’s time limit fixed in statute for motions to quash sale for fraud, failure to make sale on some public part of tract or between designated hours. Carlile v. Carlile, 30 Ky. 623 , 30 Ky. 624 , 1832 Ky. LEXIS 165 (Ky. Ct. App. 1832) (decided under prior law).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Set Aside Fraudulent Sale Under Execution, Form 151.22.

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Motion to Set Aside Fraudulent Sale Under Execution, Form 151.21.

426.330. Purchase by officer at sale made by him void.

No officer shall, directly or indirectly, bid for or buy any property sold under an execution by him or his deputy, principal or codeputy. The right of property so sold and purchased by any such officer, or by another for his use, shall not thereby be changed. Any deed or bill of sale made for property so sold shall be void.

History. 1711.

NOTES TO DECISIONS

1. Purchase by Officer.

A sheriff cannot purchase at public execution sale personal property levied on by him. Stapp v. Toler, 6 Ky. 450 , 1814 Ky. LEXIS 98 ( Ky. 1814 ) (decided under prior law).

Deputy sheriff had no right to bid for or buy at execution sale, land which was being sold by co-deputy. Ettlinger & Borries v. Tansey, 56 Ky. 364 , 1856 Ky. LEXIS 38 ( Ky. 1856 ) (decided under prior law). See Smith v. Pope's Heirs, 44 Ky. 337 , 1845 Ky. LEXIS 17 ( Ky. 1845 ).

Execution creditor may leave specific bid with officer which latter may cry without violating statute which merely prohibits him from buying or bidding in own behalf at his own sales. Brannin v. Broadus, 94 Ky. 33 , 21 S.W. 344, 14 Ky. L. Rptr. 726 , 1893 Ky. LEXIS 8 ( Ky. 1893 ) (decided under prior law).

Burden on sheriff to prove that purchase of property of execution defendants, while he held execution, was not prejudicial to execution creditors could be met by showing that market value of property did not exceed amount of lien which he discharged or amount of homestead to which defendant was entitled and liens. West v. Criscillis, 242 Ky. 549 , 46 S.W.2d 1082, 1932 Ky. LEXIS 311 ( Ky. 1932 ).

While execution was in his hands for levy, sheriff could not buy property of execution defendants to prejudice of execution plaintiffs. West v. Criscillis, 242 Ky. 549 , 46 S.W.2d 1082, 1932 Ky. LEXIS 311 ( Ky. 1932 ).

426.340. Duty of officer in advertising sale under execution — Returning equitable writ — Defense.

  1. No officer shall delay advertising property for sale, taken by him under execution, for more than twenty (20) days after the levy.
  2. No officer shall fail to return by the return day thereof any writ of execution or attachment for not performing a judgment in chancery or equity which is placed in his hands to execute.
  3. It shall be no defense to an action or motion against a collecting officer for failure of duty of himself or deputy that the plaintiff directed the officer to delay or in any way stay proceedings thereon unless the defense is supported by the written consent or request of the plaintiff or his agent or attorney.

History. 1712 to 1714.

NOTES TO DECISIONS

1. Delay in Execution.

Extraneous evidence would be admissible to show liability of sheriff who levied on debtor’s property and later permitted him to dispose of it so as to deprive creditor of his debt, notwithstanding sheriff did not indorse levy on writ. Commonwealth for Tiffany v. Hurt, 67 Ky. 64 , 1868 Ky. LEXIS 79 ( Ky. 1868 ) (decided under prior law). See Ridgway v. Moody's Adm'r, 91 Ky. 581 , 16 S.W. 526, 13 Ky. L. Rptr. 188 , 1891 Ky. LEXIS 96 ( Ky. 1891 ).

2. — Verbal Authority.

Directions by plaintiff’s attorney to sheriff to stay execution would not be defense for failure to proceed without written request for delay. Ridgway v. Moody's Adm'r, 91 Ky. 581 , 16 S.W. 526, 13 Ky. L. Rptr. 188 , 1891 Ky. LEXIS 96 ( Ky. 1891 ) (decided under prior law).

Effect of statute is that sheriff must proceed with execution unless he is directed in writing to stay proceedings, and he would be liable if he proceeded with sale where plaintiff’s attorney verbally directed him to stay sale but gave no written consent or direction. Davis v. Gott, 130 Ky. 486 , 113 S.W. 826, 1908 Ky. LEXIS 303 ( Ky. 1908 ).

Verbal statements of the plaintiff’s attorney directing the sheriff to stay execution proceedings provide no defense for the sheriff’s failure to proceed. Carmical v. Broughton's Adm'x, 249 Ky. 749 , 61 S.W.2d 612, 1933 Ky. LEXIS 592 ( Ky. 1933 ).

3. — Costs.

Pursuant to this section, a sheriff’s failure to conduct a public sale promptly after levying upon the subject property constituted a neglect of his official duty and while neither creditor nor debtor can be held responsible for costs arising out of sheriff’s failure to conduct a timely sale of the seized property, neither was the sheriff liable for these costs under KRS 426.350 since KRS 426.040 requires only that a sheriff file a written return advising of the progress of his levy and does not require the completion of the execution sale. Nesler v. Hailey, 898 S.W.2d 536, 1995 Ky. App. LEXIS 107 (Ky. Ct. App. 1995).

4. Procedure of Execution.

Where evidence offered in the stipulation of facts established only that a routine procedure existed for the sheriff to follow upon receipt of a writ of execution but the deputy signing the return writ could not recall having noticed the occupant of the dwelling, or having delivered a copy of the execution to the real property subject to levy, bank failed to offer the requisite quantum of proof to establish that a proper levy was made against debtor’s remainder interest in fee as required for creation of bank’s superior interest in the subject property. In re Wilson, 38 B.R. 940, 1984 Bankr. LEXIS 5875 (Bankr. W.D. Ky. 1984 ).

Cited:

W. E. Stephens Mfg. Co. v. Miller, 429 S.W.2d 384, 1968 Ky. LEXIS 746 ( Ky. 1968 ).

Research References and Practice Aids

Cross-References.

Constable liable for stay in proceedings unless authorized by plaintiff in writing, KRS 70.380 .

Failure to collect or return claim, liability of constable for, KRS 70.390 .

Officer may use force in executing certain writs, KRS 70.180 .

Return of writ, duty of sheriff, KRS 70.070 .

Taxes and other public money, liability of officer for failure to levy or return execution or for making false return, KRS 135.100 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order as to Sheriff’s Report of Fees and Commissions (Another Form), Form 18.16.

426.350. Liability of officer for failing to make return in time — Exceptions.

  1. Any sheriff or like officer, in whose hands a writ of execution is placed, who fails, without reasonable excuse, to return the writ to the office where it was issued within thirty (30) days after the return day, shall, with his sureties or the personal representatives, heirs or devisees of either, be liable jointly and severally to the plaintiff in the execution for the amount of the execution, with thirty percent (30%) damages thereon and the costs of recovery. The remedy shall be the same as provided in KRS 426.360 .
  2. The provisions of subsection (1) of this section shall not apply to any case in which the collecting officer had, at the commencement of the proceeding, paid the plaintiff the amount of the execution. If he had paid in part, then the thirty percent (30%) damages shall only be adjudged against him upon the portion unpaid.
  3. If the defendant in an execution is insolvent, and has no property in the county out of which the execution or any part thereof can be made, the collecting officer shall not be held liable for the amount of the execution for failing to comply with the provisions of subsection (1) of this section, but shall be liable for thirty percent (30%) of the amount of the execution.

History. 1716 to 1718.

NOTES TO DECISIONS

1. Delay in Return.

A capias ad satisfaciendum is a writ of execution within the statute which denounces a penalty against sheriffs who fail to return writs of execution within 30 days after the return day. Bailer v. Leathers, 9 Ky. L. Rptr. 971 (1888) (decided under prior law).

Procedure outlined by subsection (1) of KRS 426.360 and subsection (1) of this section permits court whose process is involved to investigate alleged derelictions of the officer; hence, proceedings against marshal in police court whence process issued were prerequisite to action in circuit court on bond. Board of Councilmen v. Rice, 249 Ky. 771 , 61 S.W.2d 614, 1933 Ky. LEXIS 593 ( Ky. 1933 ).

In action for sheriff’s failure to return execution, plaintiff must allege and prove that he was damaged, and where title to the property is put in issue, plaintiff must allege and prove some vendible title in the execution debtor and the value of the property on which the sheriff failed to levy. Barnett v. Gilbert, 280 Ky. 402 , 133 S.W.2d 529, 1939 Ky. LEXIS 135 ( Ky. 1939 ).

2. — Venue.

Action against sheriff and his sureties for failure to timely return execution must be brought in county whence the execution issued in view of KRS 426.360 , this section, and KRS 452.405 . Adams v. Simmons, 65 S.W. 152, 23 Ky. L. Rptr. 1389 , 1901 Ky. LEXIS 369 (Ky. Ct. App. 1901). See Ingram v. Turner, 51 S.W. 148, 21 Ky. L. Rptr. 283 (1899).

3. — Error in Amount Due.

Sheriff did not have reasonable excuse for failure timely to return execution, where there was judgment, but exact amount remaining due thereon after credits was less by few cents than amount stated in execution. Carmical v. Broughton's Adm'x, 249 Ky. 749 , 61 S.W.2d 612, 1933 Ky. LEXIS 592 ( Ky. 1933 ).

4. — Execution Not Authorized.

Where there is no judgment authorizing execution, sheriff is not bound to levy or return it, and would not be liable for failure to do either. Williams v. Hall, 32 Ky. 97 , 1834 Ky. LEXIS 25 ( Ky. 1834 ) (decided under prior law).

A sheriff is not bound to levy or return an execution where there was no judgment authorizing execution. Carmical v. Broughton's Adm'x, 249 Ky. 749 , 61 S.W.2d 612, 1933 Ky. LEXIS 592 ( Ky. 1933 ).

5. — Bankruptcy of Debtor.

A lien obtained against the property of a bankrupt by levy of execution is not automatically nullified by an adjudication in bankruptcy and the fact that the sheriff had been advised by the trustee in bankruptcy that the property could not be sold or disposed of, except by permission or order of the referee in bankruptcy, was not, under this section, reasonable excuse for the failure of the sheriff to consummate the sale and make timely return of the execution. McKenzie v. Commonwealth, 373 S.W.2d 595, 1963 Ky. LEXIS 166 ( Ky. 1963 ).

Where a debtor was adjudged bankrupt but the federal court issued no order against the enforcement of a lien and the trustee took no steps to set aside the lien or subject the property to the orders of the federal court, the state court retained jurisdiction and the sheriff had no legal excuse not to proceed with the sale of the property under execution. McKenzie v. Commonwealth, 373 S.W.2d 595, 1963 Ky. LEXIS 166 ( Ky. 1963 ).

6. — Damages.

Sheriff was liable for 30 percent of uncollected balance of execution which he did not timely return, but was not liable for uncollected balance where failure to collect was not due to his fault or to failure to timely return execution. Hill v. Turner, 66 Ky. 27 , 1867 Ky. LEXIS 113 ( Ky. 1867 ) (decided under prior law).

Where, although sheriff did not timely return execution, debtor paid part of debt, such partial payment should be credited to sheriff and recovery permitted against him only for sum remaining due, upon finding that it could have been collected. Commonwealth for Peters v. Bosley, 68 Ky. 221 , 1868 Ky. LEXIS 248 ( Ky. 1868 ) (decided under prior law).

Liability of officer for failing to sell property taken under execution is value of the property, if it is finally lost and defendants are insolvent, or if only solvent defendant is released by laches of officer. Royse v. Reynolds, 73 Ky. 286 , 1874 Ky. LEXIS 48 ( Ky. 1874 ) (decided under prior law).

It was error for the court to instruct the jury “not to find for the plaintiff more than one cent damages.” If the plaintiff was entitled to recover at all for the failure to return the execution within 30 days after the return day, he was entitled to recover 30 percent on the sum named in the execution. Bailer v. Leathers, 9 Ky. L. Rptr. 971 (1888) (decided under prior law).

Under second count of petition claiming damages by reason of the failure of the sheriff to arrest the defendant in the capias, the plaintiff was entitled to recover all damages, not exceeding the amount of his debt, which he probably sustained by reason of the failure of the sheriff to arrest the defendant. The fact that the defendant was insolvent is not conclusive against plaintiff’s right to recover more than nominal damages. Bailer v. Leathers, 9 Ky. L. Rptr. 971 (1888) (decided under prior law).

Where the creditor made no showing that the original judgment debtors had property the sheriff could have seized, the creditor could not receive damages for the failure of the sheriff to make the return in time. Ohio Casualty Ins. Co. v. Kentucky Natural Resources & Environmental Protection Cabinet, 722 S.W.2d 290, 1986 Ky. App. LEXIS 1503 (Ky. Ct. App. 1986) (decided under prior law).

Sheriff was liable for 30 percent damages on amount of execution which, at request of defendant’s attorney but without consent of plaintiff’s attorney, he failed to return within 30 days after return day. James Mfg. Co. v. E. Rehkopf Saddlery Co., 145 Ky. 524 , 140 S.W. 693, 1911 Ky. LEXIS 894 ( Ky. 1911 ).

7. — — Liability of Sheriff.

Pursuant to KRS 426.340 , a sheriff’s failure to conduct a public sale promptly after levying upon the subject property constituted a neglect of his official duty and while neither creditor nor debtor can be held responsible for costs arising out of sheriff’s failure to conduct a timely sale of the seized property, neither was the sheriff liable for these costs under this section since KRS 426.040 requires only that a sheriff file a written return advising of the progress of his levy and does not require the completion of the execution sale. Nesler v. Hailey, 898 S.W.2d 536, 1995 Ky. App. LEXIS 107 (Ky. Ct. App. 1995).

8. — Interest.

In an action under this section against a sheriff for failure to consummate an execution sale and make timely return of the execution, there is no basis for allowing interest on the penalty until it has been adjudicated and since the liability of the sheriff for the amount of the execution is likewise in the nature of a penalty, interest should be allowed on the amount of the execution and penalty only from the date of judgment. McKenzie v. Commonwealth, 373 S.W.2d 595, 1963 Ky. LEXIS 166 ( Ky. 1963 ).

9. — Notice.

Notice of motion must contain all requisites of petition; plaintiff is required to allege and prove every fact showing that officer was liable. Johnson v. Bradley, 74 Ky. 666 , 1876 Ky. LEXIS 17 ( Ky. 1876 ) (decided under prior law).

Notice of motion was fatally defective where it did not allege name of court from which execution issued, or that it was placed in the officer’s hands while valid, or give date or return day, or date when officer received it, or that he failed to return it within 30 days after return day, or that his failure was without reasonable excuse. Johnson v. Bradley, 74 Ky. 666 , 1876 Ky. LEXIS 17 ( Ky. 1876 ) (decided under prior law).

10. — Time Limitations.

Motions only, and not writs to recover damages for derelictions of officers, are barred in two years. Commonwealth for Peters v. Bosley, 68 Ky. 221 , 1868 Ky. LEXIS 248 ( Ky. 1868 ) (decided under prior law).

11. — Invalid Execution.

Constable and his bondsmen were not liable where constable failed to return execution which was invalid. Hibbard v. Watson, 8 Ky. Op. 461, 1875 Ky. LEXIS 173 (Ky. Ct. App. Apr. 2, 1875) (decided under prior law).

12. — Execution Extends Time.

Execution made returnable more than 90 days from teste was not void, but merely voidable by party affected, and such defect would not exonerate sheriff for failure to make timely return. Wilson v. Huston, 7 Ky. 332 , 1816 Ky. LEXIS 42 ( Ky. 1816 ) (decided under prior law).

13. — Given to Wrong Clerk.

Reasonable excuse for sheriff’s failure to return execution within 30 days after return day was shown, where, after receiving execution from another county and attempting to execute it, he indorsed it “no sale for want of bidders” and left it with clerk of his county believing recordation of return to be legally required, and thereafter was unable to recover it from clerk. Farmers' Bank of Kentucky v. White, 10 Ky. Op. 654, 1 Ky. L. Rptr. 120 , 1880 Ky. LEXIS 293 (Ky. Ct. App. June 16, 1880) (decided under prior law).

14. — Evidence.

As the failure to return was admitted, the plaintiff’s case was made out. While plaintiff must allege that the failure to return was without reasonable excuse, that allegation is supported by proof that the execution was placed in the officer’s hands while in effect and was not returned within 30 days after the return day. Bailer v. Leathers, 9 Ky. L. Rptr. 971 (1888) (decided under prior law).

On issue joined as to whether sheriff’s failure to return an execution for more than 30 days after return day was without reasonable excuse, it was improper to allow the sheriff to testify as to what the deputy said when he delivered the execution to the sheriff, the delay having already occurred; what he may have said to the sheriff was not a part of the act to be proved, but was a mere declaration concerning a part transaction. Bailer v. Leathers, 9 Ky. L. Rptr. 971 (1888) (decided under prior law).

15. — Proof of Excuse.

If statement had been made in notice of motion seeking to impose liability on sheriff for failure to timely return execution that no reasonable excuse existed for such failure, such proof need not have come from plaintiff, but should come from defendants as being matter peculiarly within their knowledge. Johnson v. Bradley, 74 Ky. 666 , 1876 Ky. LEXIS 17 ( Ky. 1876 ) (decided under prior law).

Cited:

Teegarden v. McKenzie, 444 S.W.2d 892, 1969 Ky. LEXIS 231 ( Ky. 1969 ).

Opinions of Attorney General.

A sheriff, in the absence of a reasonable excuse, must return a capias to the office where issued within 30 days after the return day. OAG 68-526 .

In the absence of a reasonable excuse, the sheriff has to make a return on an execution to the judge within 30 days after the return day. OAG 68-526 .

Research References and Practice Aids

Cross-References.

Liability of officer for failing to levy or return execution issued for collection of taxes and public money, KRS 135.110 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order as to Sheriff’s Report of Fees and Commissions (Another Form), Form 18.16.

426.360. Money collected by officer on execution — Liability for failure to pay over — Duty on stay of proceedings — Remedies.

  1. If a sheriff or other like officer receives money on any writ of execution or other process, and fails on proper demand to immediately pay the money to the party entitled thereto or to his agent or attorney, the officer and his sureties or any one of them, or his personal representatives, heirs or devisees, shall be liable to such party for the amount collected and fifteen percent (15%) per annum interest thereon from the demand until paid, together with the costs of recovery, legal and extraordinary. The remedy shall be by motion or action in the court where the execution issued. Ten (10) days’ notice of the motion, specifying the grounds thereof, shall be given.
  2. If the sheriff or a like officer collects any money under an execution in his hands, and the defendant obtains an injunction or other writ staying proceedings on the execution before the money is paid over to the plaintiff, the officer must pay the money or the part for which the execution is stayed to the defendant from whom it was collected. Any officer refusing to pay over money as herein directed shall be liable as provided in subsection (1) of this section.

History. 1715, 1719.

NOTES TO DECISIONS

1. Recovery of Money.

The sheriff and his bondsmen are liable for money collected pursuant to writ with penalty provided by statute, but he and his bondsmen are not liable for penalty for failure to pay over money which was not collected pursuant to writ. Hume v. White's G'd'n, 8 Ky. Op. 651, 1876 Ky. LEXIS 176 (Ky. Ct. App. Mar. 24, 1876) (decided under prior law).

2. — Duty to Pay Creditor.

When sheriff collects under execution, he may not constitute himself a court and pay out sums to claimants of execution creditor; he has no discretion but must pay to execution creditor unless claimants institute litigation by attachment or other lawful means, protecting creditor by attachment bond. Champion v. Dunn, 229 Ky. 148 , 16 S.W.2d 791, 1929 Ky. LEXIS 705 ( Ky. 1929 ).

Where a plaintiff proceeds by motion under KRS 418.005 against a sheriff for money collected on execution for the plaintiff and paid by the sheriff to persons claiming against the plaintiff, a claim that the money was properly owed by the plaintiff to the payees is not a defense for the sheriff, since he has no discretion in paying over the money to the plaintiff. Champion v. Dunn, 229 Ky. 148 , 16 S.W.2d 791, 1929 Ky. LEXIS 705 ( Ky. 1929 ).

3. — Damages.

Since term “cost of recovery legal and extraordinary” must refer to recovery of costs beyond legal costs and since attorney’s fees on motion under subsection (1) of this section were within term, movant was entitled to reasonable attorney’s fees, fixed under circumstances at $100. Champion v. Dunn, 233 Ky. 366 , 25 S.W.2d 1023, 1930 Ky. LEXIS 567 ( Ky. 1930 ).

4. — Notice.

Objection that statutory ten (10) days’ notice was not given upon motion under subsection (1) of this section was waived where sheriff entered appearance to motion. Champion v. Dunn, 233 Ky. 366 , 25 S.W.2d 1023, 1930 Ky. LEXIS 567 ( Ky. 1930 ).

5. — Pleadings.

Although remedy under subsection (1) of this section does not contemplate involved settlement, and hence only pleadings required are notice, motion and response, respondent may plead any defense, including answer and counterclaim, but should do so in formal pleading. Taylor v. Sowards, 225 Ky. 567 , 9 S.W.2d 709, 1928 Ky. LEXIS 820 ( Ky. 1928 ).

6. — Paid by Sheriff.

Sheriff was not liable for money which he collected upon execution, where, after serving summons, he himself paid defendant’s debt to plaintiff’s attorney, and later, after plaintiff had recovered judgment and issued execution, collected from defendant, returned execution satisfied, and retained money as his own. Ely v. Harvey, Keith & Co., 69 Ky. 620 , 1869 Ky. LEXIS 228 ( Ky. 1869 ) (decided under prior law).

7. — Paid to Creditor’s Attorney.

Payment to plaintiff’s attorney was payment to plaintiff. Ely v. Harvey, Keith & Co., 69 Ky. 620 , 1869 Ky. LEXIS 228 ( Ky. 1869 ) (decided under prior law).

Cited:

Dunn v. Champion, 266 Ky. 757 , 99 S.W.2d 813, 1936 Ky. LEXIS 740 ( Ky. 1936 ).

Opinions of Attorney General.

A sheriff who has collected money under an execution must pay it over to the execution creditor or his attorney or to any other person having his written authority on due demand, and he has no right to delay such payment of money to the person entitled to it when demand is made prior to the return date, since the purpose of the return date is merely to give the officer sufficient time to find property which will satisfy the execution and make his return thereon. OAG 73-313 .

Research References and Practice Aids

Cross-References.

Receipt of constable for money collected, presumptive evidence of collection, KRS 70.420 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order as to Sheriff’s Report of Fees and Commissions (Another Form), Form 18.16.

ALR

30 Am Jur. 2d, Executions and Enforcement of Judgments, § 489.

426.370. Payment on execution after return day — Effect.

Any payment made to a sheriff or other officer, or his deputy, on an execution after the return day and while the execution remains in his hands shall be a satisfaction to that extent. The officer and his sureties on his official bond shall be responsible therefor, in the same manner as if the payment were made before the return day.

History. 4585.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.380. Officer paying execution — Assignment — Substitution.

If a sheriff or other officer is compelled to pay an execution or any part of it, by reason of some default of his concerning the same, he shall be entitled to an assignment of the judgment, and a substitution in the place of the plaintiff in the same manner as is provided in favor of a surety paying a judgment.

History. 4671.

NOTES TO DECISIONS

1. Assignment of Judgment.

In order to obtain the remedy provided by this section, plaintiff in his petition must allege that the execution was directed to the county of the defendant’s residence, or to the county where judgment was rendered. An allegation that the plaintiff “had an execution issued and returned no property found by the sheriff” is insufficient. Maddox v. Fox, 71 Ky. 402 , 1871 Ky. LEXIS 72 ( Ky. 1871 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Surety paying a judgment, KRS 412.080 to 412.130 .

426.381. Proceedings for discovery and satisfaction of judgment.

  1. After an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant’s residence, is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the same, the plaintiff in the execution may by an amended and supplemental petition filed in the action have the same redocketed and join with the execution defendant or defendants any person believed to be indebted to him or them, or to hold money or other property in which he or they have an interest, or to hold evidences or securities for the same. Upon the filing of such amended petition the case shall be transferred to the equity docket and summons issued thereon. In such supplemental proceeding or in a separate suit in equity against such parties (at his option) the plaintiff may have discovery and disclosure from the judgment creditor and his debtor or bailee, and may have any property discovered, or a sufficiency thereof, subjected to the satisfaction of the judgment.
  2. In such action the plaintiff may have an attachment against the property of the defendant in the execution, pursuant to the attachment procedures provided for in KRS chapter 425.

History. C.C. 439, 441: amend. Acts 1942, ch. 100; trans. Acts 1952, ch. 84, § 1; 1976, ch. 91, § 39.

NOTES TO DECISIONS

1. Satisfaction of Judgment.

The only action that can be maintained on a judgment of a court of this state is the equitable action to enforce its satisfaction as provided in this section. Davidson v. Simmons, 74 Ky. 330 , 1875 Ky. LEXIS 22 ( Ky. 1875 ) (decided under prior law).

Where a claim already reduced to judgment becomes the property in equity of another by assignment, he will not be entitled to a second judgment, but can only enforce the first by the remedies provided by law for the enforcement of the satisfaction of judgments. Smith v. Belmont & Nelson Iron Co., 74 Ky. 390 , 1875 Ky. LEXIS 32 ( Ky. 1875 ) (decided under prior law).

The remedy provided by this section through KRS 426.384 for enforcing the satisfaction of judgments where there has been a failure to collect by execution, must be strictly pursued. Proctor v. Bell's Adm'r, 97 Ky. 98 , 30 S.W. 15, 16 Ky. L. Rptr. 823 , 1895 Ky. LEXIS 159 ( Ky. 1895 ).

An action under this section applies only to personal judgments. Ritchey v. Buricke's Adm'rs, 54 S.W. 173, 21 Ky. L. Rptr. 1120 , 1899 Ky. LEXIS 527 (Ky. Ct. App. 1899).

In action under this section, plaintiff may subject any claim of the debtor against another on which an action of assumpsit would lie at common law. Merriwether v. Bell, 139 Ky. 402 , 58 S.W. 987, 22 Ky. L. Rptr. 844 , 1900 Ky. LEXIS 110 ( Ky. 1900 ).

Interest acquired by a purchaser of land at a commissioner’s sale, before a commissioner’s deed is executed, held not subject to sale under execution, but plaintiff’s remedy for subjecting the same to the payment of her debt is under this section. Goodin v. Wilson, 114 Ky. 716 , 71 S.W. 866, 24 Ky. L. Rptr. 1521 , 1903 Ky. LEXIS 28 ( Ky. 1903 ).

A judgment creditor who desires to subject to the satisfaction of his judgment an equitable contingent interest in land, should proceed under this section, and not under KRS 426.280 . People's Trust Co. v. Deweese, 143 Ky. 730 , 137 S.W. 201, 1911 Ky. LEXIS 473 ( Ky. 1911 ).

Title acquired by a purchaser at decretal sale where the sale has been confirmed but no deed has been made, is a mere equitable one, and is not subject to execution levy. Plaintiff’s remedy for subjecting such interest is under this section. Schmaus v. Wittemore, 155 Ky. 338 , 159 S.W. 947, 1913 Ky. LEXIS 263 ( Ky. 1913 ).

In an action under this section to enforce satisfaction of a judgment, after appellant’s disclosure that he was the owner of the land, it was not necessary for appellee, in order to acquire a lien, to have another execution issued and levied upon it, or to sue out on attachment. Marcum v. Marcum, 156 Ky. 669 , 161 S.W. 516, 1913 Ky. LEXIS 465 (Ky. Ct. App. 1913).

In an action by an assignee of a replevin bond under this section the assignor must be joined and the petition must allege recovery of a judgment in person against the defendant where the facts show the assignment, the judgment remaining unsatisfied, issuance of an execution on the judgment directed to the proper county, placement of the execution on the judgment directed to the proper county, placement of the execution while in full force and effect in the hands of an officer authorized to execute it, and return by the officer indorsed, in substance, “no property found.” Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 ( Ky. 1929 ).

An action to collect a judgment after return of execution nulla bona and to set aside a transfer of property by the judgment debtor should have been brought in equity and tried by the court without a jury. Motch's Adm'r v. Glenn, 251 Ky. 235 , 64 S.W.2d 900, 1933 Ky. LEXIS 853 ( Ky. 1933 ).

Where the plaintiff recovered a judgment against an insured under an automobile liability policy which provided that a person recovering an unsatisfied judgment against the insured could bring an action against the insurer, plaintiff’s action against the insurer was not defeated because it arose out of an action under this section against the insured. Great American Indem. Co. v. Mize, 266 Ky. 232 , 98 S.W.2d 290, 1936 Ky. LEXIS 610 ( Ky. 1936 ).

For purposes of interpreting KRS 413.090(1) “execution” could mean either the act of executing an order or the writ of execution itself, which was the formal document issued by the court authorizing a sheriff to levy upon the property of a judgment debtor, as described in KRS 426.020 . Since the term was not limited to writs of execution, but could include KRS 425.501(4) setting forth the procedure for obtaining garnishments, enforcement of judgments pursuant to KRS 426.381(2), judgment liens under KRS 426.720 , and attachments under KRS 425.526 , the judgment creditor was not time-barred under KRS 413.090(1)’s 15-year limitations period from collecting on a judgment it had against the judgment debtor, as it had pursued some of those enforcement techniques outside of a writ of execution that it had used more than 15 years earlier. Wade v. Poma Glass & Specialty Windows, Inc., 394 S.W.3d 886, 2012 Ky. LEXIS 199 ( Ky. 2012 ).

2. — Officer’s Return.

Return of “no other property found whereby the residue of the debt can be made or any part thereof,” by a deputy sheriff will authorize the filing of a bill to subject a debtor’s choses in action to the payment of the judgment debt. Evans v. Wait, 28 Ky. 110 , 1830 Ky. LEXIS 395 ( Ky. 1830 ) (decided under prior law).

Plaintiff, having a return of nulla bona as to a judgment in the quarterly court, filed a transcript in the Circuit Court and sued out execution which was returned “no property.” The court held that plaintiff may maintain an action upon the return, although the property he seeks to subject was subject to execution, and his right will be superior to that of a creditor who has his execution levied upon the property pending the action, or to that of a lis pendens purchaser, since plaintiff has a right to act upon the return of the officer, and acquires a lien by his suit, although the officer’s return be false. Clements v. Waters, 90 Ky. 96 , 13 S.W. 431, 11 Ky. L. Rptr. 880 , 1890 Ky. LEXIS 50 ( Ky. 1890 ).

Return of “no property” made by a coroner upon an execution directed to the sheriff is a nullity, and will not support an action to set aside a fraudulent conveyance, since the execution must be executed by the officer to whom it is directed. Johnson v. Elkins, 90 Ky. 163 , 13 S.W. 448, 11 Ky. L. Rptr. 967 , 1890 Ky. LEXIS 60 ( Ky. 1890 ).

The Commonwealth cannot maintain an equitable action against a turnpike company to recover money due on a judgment without a return of the execution “no property found,” at least where the petition does not disclose any exceptional reason for departure from the ordinary statutory proceeding, states no facts that would take the case out of the general rule requiring such return or makes no showing that the company did not have property not necessary in the operation or conduct of its road that might have been subject to execution. Claryville, Grant's Lick & Butler Turnpike Co. v. Commonwealth, 107 S.W. 327, 108 S.W. 250, 32 Ky. L. Rptr. 1157 , 32 Ky. L. Rptr. 861 .

A creditor may file a suit under this section on the basis of a return of “no property found” and may attach property in another county even though the debtor in fact had property within the county of execution because, in the absence of fraud with respect to the return, a creditor has a right to rely on a sheriff’s return. Sipple v. Catron, 205 Ky. 81 , 265 S.W. 491, 1924 Ky. LEXIS 57 ( Ky. 1924 ).

The sheriff was not required to wait until the return day of the execution before he could return it “no property found.” Rowan County Lumber Co. v. Kautz, 246 Ky. 732 , 56 S.W.2d 1, 1932 Ky. LEXIS 823 ( Ky. 1932 ).

3. — No Property Found.

After a judgment for a deficiency balance was obtained and an execution was returned no property found, the plaintiff was entitled to file an amended complaint seeking discovery and pursuit of hidden assets. Universal C.I.T. Credit Corp. v. Bell High Coal Corp., 454 S.W.2d 706, 1970 Ky. LEXIS 290 ( Ky. 1970 ).

4. — Jurisdiction.

The circuit court has no jurisdiction of suit in equity, brought upon return of“no property” on executions issued by a justice of the peace, to subject land belonging to the defendant. Plaintiff had only to file with the clerk of the circuit court, copies of his judgments, and sue out executions thereon, which could have been levied upon the land. Weatherford v. Myers, 63 Ky. 91 , 1865 Ky. LEXIS 13 ( Ky. 1865 ) (decided under prior law).

Justices’ and quarterly courts have exclusive jurisdiction of all actions and proceedings for the recovery of money or personal property where the amount in controversy, exclusive of interest and costs, does not exceed $50.00 in value. Hence, judgment for $50.00 having been rendered by the quarterly court of Livingston County, the common pleas court of that county did not have jurisdiction of an action to subject a debt due to the defendant to the satisfaction of the judgment. Burnes v. Cade, 73 Ky. 251 , 1874 Ky. LEXIS 41 ( Ky. 1874 ) (decided under prior law).

The circuit court has jurisdiction of an action to subject the equitable title to real estate to the satisfaction of a judgment rendered by the quarterly court of the same county on which executions had been issued and returned “no property found” from the quarterly court, and also from the clerk’s office of the circuit court on a transfer of the judgment to that office. Jones v. Jeffress, 74 Ky. 636 , 1876 Ky. LEXIS 13 ( Ky. 1876 ) (decided under prior law).

After the father of a bastard child has claimed the benefit of the insolvent debtor’s oath, and an execution has been issued against him from the county court, and returned nulla bona, the Circuit Court has jurisdiction to enforce the collection of the judgment. Brightwell v. Commonwealth, 79 Ky. 537 , 3 Ky. L. Rptr. 310 , 1881 Ky. LEXIS 73 (Ky. Ct. App. 1881).

Where land sought to be sold to satisfy judgment was fully described in the petition, it was not indispensable to make the indorsement on the summons in order to give to the court jurisdiction of the subject. Bryant v. Bryant, 20 S.W. 270, 14 Ky. L. Rptr. 358 (1892).

While the petition does not formally allege that the land involved in the action lies in the county in which the suit was brought, where the pleading and exhibits make this fact clear, the lower court had jurisdiction of the subject matter. Bryant v. Bryant, 20 S.W. 270, 14 Ky. L. Rptr. 358 (1892).

Where a judgment was rendered in the county in which the suit to enforce it is brought, the suit must be in the court from which the execution issued. Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 ( Ky. 1929 ).

5. — — Nonresident Defendants.

In an action under this section the court has jurisdiction to render personal judgments on service of summons to defendants living outside the county who were not served in the county. Viall v. Walker, 248 Ky. 197 , 58 S.W.2d 415, 1933 Ky. LEXIS 219 ( Ky. 1933 ).

6. — — County of Judgment.

A proceeding to subject the defendant’s interest in property to pay a judgment against him can only be maintained after execution and a return of “no property found,” and such an execution must be directed to the county where the judgment was rendered, or of the defendant’s residence. Tanner v. Howard, 10 Ky. Op. 793, 1 Ky. L. Rptr. 343 , 1880 Ky. LEXIS 395 (Ky. Ct. App. Oct. 26, 1880).

The return of “no property” upon an execution not directed either to the county in which the judgment was rendered, or to the county of the residence of the defendant against whom the judgment is sought to be enforced, will not enable the plaintiff to maintain such an action. The fact that the execution was directed to the county of the residence of some other defendant in the judgment than the one whose property is sought to be subjected will not authorize the action. But if the execution was directed to the county in which the judgment was rendered the action may be maintained against any of the defendants. Proctor v. Bell's Adm'r, 97 Ky. 98 , 30 S.W. 15, 16 Ky. L. Rptr. 823 , 1895 Ky. LEXIS 159 ( Ky. 1895 ).

Plaintiff may bring action under this section for a discovery of any money to which defendant is entitled and make persons indebted to him defendants therein, in the county in which the judgment was rendered, and a debtor of the judgment debtor made a party thereto, though both he and the judgment debtor reside in another county. Parks v. O. K. Jellico Coal Co., 136 Ky. 622 , 124 S.W. 868, 1910 Ky. LEXIS 521 ( Ky. 1910 ).

Where defendant was convicted in police court and on appeal to the Circuit Court was again found guilty and fined, a suit in the nature of a bill of discovery by the city attorney to collect the fine for the benefit of the city was properly brought in the Circuit Court of the county in which judgment was rendered after execution was returned “no property found.” Commonwealth use of Pineville v. Partin, 223 Ky. 405 , 3 S.W.2d 779, 1928 Ky. LEXIS 351 ( Ky. 1928 ).

7. — — Location of Land.

Where suit under this section was brought in Jefferson County for the purpose of subjecting property of the judgment debtor, wherein land attached in Leslie County was claimed, occupied, and in possession of another, it was held that the suit being really one to quiet title to land and to sell it in satisfaction of plaintiff’s debt, the proceedings must be had in the county where the land lies. Bramblett v. Couch, 105 S.W. 460, 32 Ky. L. Rptr. 311 (1907).

A suit brought by a judgment creditor upon a return of “no property found,” to set aside a fraudulent conveyance of land and subject it to the payment of his judgment, must be brought in the county where the land or some part of it is situated. Williams v. Davenport, 181 Ky. 496 , 205 S.W. 551, 1918 Ky. LEXIS 545 ( Ky. 1918 ).

Where, after return of execution unsatisfied, equitable action was instituted in which a general order of attachment was levied on land of judgment debtor’s wife in another county and lis pendens notice filed, it was held that the Circuit Court in the latter county was without jurisdiction of subsequent suit by judgment debtor’s wife to vacate attachment and have lis pendens notice declared void, since the court which first acquires jurisdiction of specific property by seizure or otherwise, thereby withdraws it from the jurisdiction of every other court so far as it is necessary to accomplish the purpose of the suit, and the court is entitled to retain such control as is requisite to effectuate its final judgment or decree therein from the interference of every other tribunal. Wilson v. Gibbs, 213 Ky. 268 , 280 S.W. 1109, 1926 Ky. LEXIS 495 ( Ky. 1926 ).

In an action to enforce a judgment brought in the court rendering the judgment, such court had jurisdiction to sell land of the judgment debtor located in another county and as a necessary incident to such jurisdiction, the additional power to bring before the court and adjudicate the rights of all persons asserting a lien or claim to the land. Noe v. Brock, 263 Ky. 37 , 91 S.W.2d 546, 1936 Ky. LEXIS 126 ( Ky. 1936 ).

Provided that property has been seized according to any legal process through which it may be done, a statutory action may be brought on a return of nulla bona in the court rendering the judgment, and the sale of real estate may be ordered in satisfaction of the judgment, although it may be located in a different county. Hargis v. Hargis, 287 Ky. 72 , 151 S.W.2d 417, 1941 Ky. LEXIS 481 ( Ky. 1941 ).

8. — Quarterly Court.

A return of “no property” upon an execution from a justice’s or quarterly court does not entitle the creditor to resort to an equitable action to subject the land of his debtor. To authorize such an action he must also have a return of “no property” upon an execution from the circuit court. Clements v. Waters, 90 Ky. 96 , 13 S.W. 431, 11 Ky. L. Rptr. 880 , 1890 Ky. LEXIS 50 ( Ky. 1890 ).

A return of “no property” will not support a suit to set aside a conveyance as fraudulent unless the execution so returned was one under which land could have been levied on and sold. Therefore, a return of “no property” upon an execution from the quarterly court will not support such an action, nor will it entitle the creditor to proceed by attachment to subject the land fraudulently conveyed. Behan v. Warfield, 90 Ky. 151 , 13 S.W. 439, 11 Ky. L. Rptr. 960 , 1890 Ky. LEXIS 55 ( Ky. 1890 ).

9. — Garnishment Action.

This section is inapplicable to a garnishment proceeding as this was not an action for discovery and the plaintiff’s claims had not been reduced to judgment on which execution had been returned “no property found.” Ray v. Peter Fox Sons Co., 272 Ky. 497 , 114 S.W.2d 750, 1938 Ky. LEXIS 153 ( Ky. 1938 ).

10. — Second Personal Judgment.

Where a personal judgment has been taken against a debtor and a return made of “no property found,” in a proceeding thereunder to discover and subject property to the payment of the judgment, it is error for the court to pronounce a second personal judgment. Farmer v. Porch & Cook's Assignee, 12 Ky. Op. 633, 5 Ky. L. Rptr. 933 , 1884 Ky. LEXIS 281 (Ky. Ct. App. May 29, 1884).

Plaintiff, having obtained a personal judgment against defendant for a debt which has not been satisfied, cannot obtain a second judgment for same, although the court for some reason may have quashed the execution issued on the former judgment. No action can be maintained except to enforce the collection of the former judgment. Cundiff v. Trimble, 52 S.W. 940, 21 Ky. L. Rptr. 657 , 1899 Ky. LEXIS 339 (Ky. Ct. App. 1899).

In an action under this section, a second personal judgment should not be rendered against the defendant. Nunnelley v. Nunnelley, 246 Ky. 250 , 54 S.W.2d 931, 1932 Ky. LEXIS 748 ( Ky. 1932 ).

Rendering a second personal judgment against the judgment debtor in an action under this section was erroneous. Peck v. Trail, 251 Ky. 377 , 65 S.W.2d 83, 1933 Ky. LEXIS 883 ( Ky. 1933 ).

11. — Attachment.

A claim of an administrator in his decedent’s estate for remuneration for his services constitutes a chose in action, which his personal creditors may, by equitable proceeding, attach and subject to the payment of their debts under this section. National Bank of Lancaster v. Johnson's Adm'r, 96 S.W. 433, 29 Ky. L. Rptr. 728 (1906).

Money deposited in lieu of bail is a fund in court within the meaning of this statute and is subject to an attachment proceeding in action upon return of “no property found.” Landy v. Moritz, 109 S.W. 897, 33 Ky. L. Rptr. 223 (1908).

Prospective dividends which have not been declared cannot be attached under this section. Bowman v. Breyfogle, 145 Ky. 443 , 140 S.W. 694, 1911 Ky. LEXIS 895 ( Ky. 1911 ).

An action to enforce the satisfaction of a judgment, brought under this section, may, by the judgment creditor be kept on the docket until the judgment is satisfied, and alias attachments may be had from time to time, without the filing of a new affidavit, although 15 years may have elapsed since the last attachment was issued in the action. Slaughter v. Mattingly, 155 Ky. 407 , 159 S.W. 980, 1913 Ky. LEXIS 279 ( Ky. 1913 ).

Under this section an attachment goes with a discovery action as a matter of right without an affidavit, bond, or statement of the statutory grounds for an attachment. Commonwealth use of Pineville v. Partin, 223 Ky. 405 , 3 S.W.2d 779, 1928 Ky. LEXIS 351 ( Ky. 1928 ).

An unliquidated claim for personal injuries may not be attached under this section. Wittenauer v. Kaelin, 228 Ky. 679 , 15 S.W.2d 461, 1929 Ky. LEXIS 609 ( Ky. 1929 ).

12. — Contents of Petition.

Where petition in action under this section furnishes by appropriate allegation a sufficient ground for the issuance of a general attachment, failure to aver in terms that the judgment was still unsatisfied, if a material defect, was cured by the subsequent amendment to that effect and could not operate to vitiate the attachment or levy and lien created thereby. Lewis v. Quinker, 59 Ky. 284 , 1859 Ky. LEXIS 98 ( Ky. 1859 ) (decided under prior law).

The mere statement in a petition by a creditor, seeking relief against a voluntary conveyance made after the creation of plaintiff’s demand, that he had obtained judgment for it against the administrator of his debtor and caused execution to issue which has been returned nulla bona, is not sufficient to entitle him to a judgment, even though the defendants make default. In such a case, the facts constituting the original cause of action should be stated in the petition against the fraudulent grantee. Alexander & Lancashire v. Quigley's Ex'rs, 63 Ky. 399 , 1866 Ky. LEXIS 18 ( Ky. 1866 ) (decided under prior law).

Where a creditor seeks in equity to enforce the collection of a debt, he must allege that he has recovered a judgment in person against the defendant whose property he seeks to attach, that the judgment is unpaid, that he has caused execution to issue on his judgment directed to the county where the judgment was rendered or in which the defendant resides, that the execution was placed in the hands of the proper officer while in force, and that it had been returned by the officer indorsed in substance, “no property found.” Adkins v. Meadows, 9 Ky. Op. 124, 1876 Ky. LEXIS 360 (Ky. Ct. App. Sept. 13, 1876) (decided under prior law).

Allegation of plaintiff that the garnishee is indebted to the judgment debtor in an amount largely more than enough to satisfy plaintiff’s claim sued on is not sufficiently specific or certain to authorize a judgment by default. Crabb v. Hill, 30 S.W. 415, 17 Ky. L. Rptr. 44 (1895).

Petition which fails to show that the county to which the execution was issued was the county of defendant’s residence, and also fails to show that any execution had been issued to the county in which the judgment was rendered, does not state a cause of action under this section. Crabb v. Hill, 30 S.W. 415, 17 Ky. L. Rptr. 44 (1895).

Petition, in action to enforce a judgment rendered in Hopkins County after a return of “no property found,” having alleged that the defendant resided in Jefferson County and that he was summoned in that county, and having set out substantially the allegations required by the statute, demurrer to that pleading should have been overruled. Martin v. Byrd, 42 S.W. 1112, 19 Ky. L. Rptr. 1030 (1897).

In an action of nulla bona an indorsement on the attachment that the object of the action is to garnishee any funds or property in the estate or possession of the estate of the deceased mother of the debtor sufficiently describes the property sought to be reached. Wilkerson v. Phillips, 118 Ky. 559 , 81 S.W. 691, 26 Ky. L. Rptr. 440 , 1904 Ky. LEXIS 72 ( Ky. 1904 ).

An allegation in a petition that the plaintiff had an execution issued for a sum named, against the defendant and placed in the hands of the sheriff who returned it “no property found,” and alleging that the defendant had fraudulently conveyed his property and asking that he be required to disclose what property he owns, is demurrable in failing to allege that the plaintiff had recovered a judgment against the defendant therefor. Morrison v. Fletcher, 108 S.W. 267, 32 Ky. L. Rptr. 1162 (1908).

Where the petition stated that “the clerk of the said court issued a writ of fieri facias directed to the sheriff of Franklin County, in which the said judgment had been duly rendered” this was sufficiently specific to indicate that the judgment was rendered in Franklin County. Dade Park Jockey Club v. Commonwealth, 253 Ky. 314 , 69 S.W.2d 363, 1933 Ky. LEXIS 979 ( Ky. 1933 ).

13. — Discharge in Bankruptcy.

Where a defendant pleads and shows his discharge in bankruptcy, there can be no personal judgment against him. The remedy of plaintiff was to subject the land upon which the debt was sued to a lien. Boyer v. Lincoln, 11 Ky. Op. 437, 3 Ky. L. Rptr. 537 , 1882 Ky. LEXIS 133 (Ky. Ct. App. Jan. 24, 1882).

14. — Fraud.

Equity will not aid a judgment debtor in enforcing a judgment procured through fraud, by action instituted under this section. Duerson v. Semonin, 29 S.W. 635, 17 Ky. L. Rptr. 51 (1895).

Fraud in obtaining a judgment may be pleaded as a defense to an action for its enforcement brought in the same court in which the judgment was rendered. Ft. Jefferson Imp. Co. v. Green, 112 Ky. 85 , 65 S.W. 161, 23 Ky. L. Rptr. 1342 , 1901 Ky. LEXIS 289 ( Ky. 1901 ).

15. — Time Limitations.

Running of the statute of limitations in favor of a surety in a replevin bond as provided in KRS 412.120 is not stopped by bringing an action in the nature of a bill of discovery to enforce the bond. Louis Snider's Sons Co. v. Armendt, 105 Ky. 317 , 49 S.W. 10, 20 Ky. L. Rptr. 1203 , 1899 Ky. LEXIS 207 ( Ky. 1899 ).

That a judgment creditor failed to have an execution issued within 15 years after the last execution did not bar a suit, under this section, which was pending at the expiration of the 15-year period. H. A. Thierman Co. v. Wolff, 125 Ky. 832 , 102 S.W. 843, 31 Ky. L. Rptr. 376 , 1907 Ky. LEXIS 343 ( Ky. 1907 ).

16. — Parties.

In an action to set aside a fraudulent conveyance, after the death of the grantor, it is necessary to join as defendants the heirs and personal representatives, or if such representatives are not joined it must be alleged there are none. Pearce v. J. T. Brown & Bro., 9 Ky. Op. 166, 1876 Ky. LEXIS 379 (Ky. Ct. App. Oct. 9, 1876) (decided under prior law).

An attorney employed to bring an action for damages for personal injuries under a contract for a contingent fee, may be discharged before the action is tried, and, in such a case, he has no lien upon a judgment subsequently recovered by another attorney in a different action, and said attorney is not a necessary or proper party to a creditor’s bill to collect the judgment. Harbison-Walker Refractories Co. v. McFarland's Adm'r, 156 Ky. 44 , 160 S.W. 798, 1913 Ky. LEXIS 389 ( Ky. 1913 ).

A plaintiff in an action under this section could join additional garnishee defendants under either this section or former KRS 425.325 , but he was not required to join them in order to give the court jurisdiction over them for the issuance of alias attachments. Thacker v. Cook, 236 Ky. 159 , 32 S.W.2d 738, 1930 Ky. LEXIS 701 ( Ky. 1930 ).

Under this section, those persons believed to be indebted to the defendant or holding money or property in which the defendant has an interest, or holding evidences or securities for the defendant, may also be made defendants, only after the plaintiff’s alleged debt has been reduced to judgment. Hartford Fire Ins. Co. v. Green, 282 Ky. 466 , 138 S.W.2d 933, 1940 Ky. LEXIS 178 ( Ky. 1940 ).

There was no misjoinder of parties defendant where one of three (3) sureties satisfied the whole judgment against them and then took an assignment thereof, caused an execution to be issued against the others for the proportionate share of the liability, which was returned “no property found,” brought an action against the sureties and their wives to set aside a transfer of corporate stock by one of the other sureties to his wife for the fraudulent purpose of defeating the collection of the judgment. Pope v. Cawood, 293 Ky. 389 , 168 S.W.2d 985, 1943 Ky. LEXIS 602 ( Ky. 1943 ).

17. — — Necessary Parties.

A common-law judgment against a cestui que trust rendered in an action to which the trustee was not a party does not bind the trustee, and he may resist its enforcement against the trust estate upon the ground that the contract upon which it was rendered was champertous and void. A proceeding against either the trustee or cestui que trust has no effect upon the other, both being essential to the termination of any action in reference to the trust estate. Roberts v. Yancey, 94 Ky. 243 , 21 S.W. 1047, 15 Ky. L. Rptr. 10 , 1893 Ky. LEXIS 32 ( Ky. 1893 ).

In a suit under this section to subject the property of defendant to the payment of a judgment rendered on notes signed by an alleged corporation and defendant and plaintiff and others as sureties, based on the fact that plaintiff had satisfied the judgment, the court, with a view of settling the liabilities of the incorporators as partners because of the invalidity of the incorporation, should make all the incorporators parties. Sanders & Walker v. Herndon, 128 Ky. 437 , 108 S.W. 908, 32 Ky. L. Rptr. 1362 , 1908 Ky. LEXIS 84 ( Ky. 1908 ).

In an action under this section and KRS 378.030 to enforce a judgment against property allegedly fraudulently transferred to the judgment debtor’s wife, the failure to join transferees of the wife was reversible error. Isaacs v. Fields, 261 Ky. 447 , 87 S.W.2d 936, 1935 Ky. LEXIS 657 ( Ky. 1935 ).

Where parties to whom land had been sold prior to the action to subject the land to a lien of judgment against the grantor were not made parties to this lien action the judgment imposing the liens was erroneous. Isaacs v. Fields, 261 Ky. 447 , 87 S.W.2d 936, 1935 Ky. LEXIS 657 ( Ky. 1935 ).

Where petition in action on nulla bona alleged that the judgment debtor owned the land alleged to have been deeded to his wife, and also land alleged to have been deeded to his son, both the wife and son were necessary parties to the action, and it was no misjoinder to make them parties defendants. Plaintiff was not required to elect between respective claims as to wife and as to son. Cassada v. First Nat'l Bank, 268 Ky. 373 , 105 S.W.2d 149, 1937 Ky. LEXIS 477 ( Ky. 1937 ).

18. — Stockholders.

Stock held by a nonresident debtor in a corporation, created under the laws of Delaware but having its chief office and doing all its business in Kentucky, may be attached in Kentucky by a creditor in an action brought under this section. Bowman v. Breyfogle, 145 Ky. 443 , 140 S.W. 694, 1911 Ky. LEXIS 895 ( Ky. 1911 ).

In an action against a corporation which had sold its property after the judgment was rendered there could be no recovery against the former stockholders individually where there were allegations that the assets had been distributed to the stockholders, and in any event no stockholder could be held liable beyond any amount he might have received. Rex Red Ash Coal Co. v. Powers, 218 Ky. 93 , 290 S.W. 1061, 1927 Ky. LEXIS 104 ( Ky. 1927 ).

In an action under this section a judgment against a company which thereafter transferred all assets to another reorganized company owned by the same persons may be enforced against the stockholders of the reorganized company. Maryland Casualty Co. v. New Trosper Coal Co., 219 Ky. 843 , 294 S.W. 801, 1927 Ky. LEXIS 457 ( Ky. 1927 ).

Evidence that a stockholder had not paid for his stock was sufficient to support a personal judgment against him in an action under this section to enforce a judgment against the corporation. Rowan County Lumber Co. v. Kautz, 246 Ky. 732 , 56 S.W.2d 1, 1932 Ky. LEXIS 823 ( Ky. 1932 ).

19. — Property Subject to Debts.

A married woman having received estate by devise, a personal judgment against her for a debt of the testator, to be levied only on estate derived from him, was not void. And, in a suit to enforce that judgment, she cannot plead that the debt for which it was rendered is barred by limitation. It being an issue in the old suit whether the estate received by her from the testator was liable, the judgment is conclusive as to the question. Stevenson v. Flournoy, 89 Ky. 561 , 13 S.W. 210, 11 Ky. L. Rptr. 745 , 1890 Ky. LEXIS 32 ( Ky. 1890 ).

Judgment was had against H, and a return of “no property” followed. Under this section suit was brought seeking to subject a tract of land to satisfy it. The father of H directed by will that his land should be divided into two parts, one part to be held in trust for H during his life, with remainder to the children of H. The chancellor ordered the land rented and the rents applied to the payment of the judgment. It was held that no injury was done the remainderman, and H had no ground of complaint. Hubbard v. Hayes, 98 S.W. 1034, 30 Ky. L. Rptr. 406 , 1907 Ky. LEXIS 373 (Ky. Ct. App. 1907).

A liability for breach of warrant is a “chose in action” which may be reached under this section. Pioneer Coal Co. v. Asher, 210 Ky. 498 , 276 S.W. 487, 1925 Ky. LEXIS 716 ( Ky. 1925 ).

Where a deed, absolute on its face, is shown by parol evidence to have been executed as security for a debt, a judgment creditor is entitled to have the deed declared a mortgage and to imposition of alien on the property, subject to the mortgage. Motch's Adm'r v. Glenn, 251 Ky. 235 , 64 S.W.2d 900, 1933 Ky. LEXIS 853 ( Ky. 1933 ).

Enforceable contractual rights, vesting property interest in the debtor, may be reached and appropriated by the creditor and this is especially true with reference to enforceable trust agreements wherein the debtor is the owner of the equitable title to the property sought to be subjected. Florence v. Dunagan, 281 Ky. 25 , 134 S.W.2d 970, 1939 Ky. LEXIS 8 ( Ky. 1939 ).

A creditor may reach the income of a trust beneficiary where the trustee has no discretion to withhold proceeds and no set amount of disbursement was established, even though the creditor did not allege the amount of the trust fund, the income, or what portion of the income was necessary for the beneficiaries’ support. Huffman v. Chasteen, 307 Ky. 1 , 209 S.W.2d 705, 1948 Ky. LEXIS 668 ( Ky. 1 948).

20. — Legal Title in Wife.

In a suit under this section to subject land, held in wife’s name, to her husband’s debts, evidence that the profits from the wife’s business which were used to buy the property in question were a result of her husband’s business skills and endeavors was sufficient to allow a judgment against the property. Blackburn v. Thompson, 66 S.W. 5, 23 Ky. L. Rptr. 1723 (1902).

In an action to enforce a judgment against a husband by reaching property to which his wife had title, evidence that the wife’s property had been paid for out of her separate estate and was managed by her husband who received a salary sufficient for his services was not sufficient to subject the wife’s property to payment of the husband’s debts. J. E. Hayner & Co. v. McKee, 72 S.W. 347, 24 Ky. L. Rptr. 1871 , 1903 Ky. LEXIS 432 (Ky. Ct. App. 1903).

Where a farm in the name of the husband was sold shortly before his insolvency and another was purchased in the wife’s name, the burden of proving the bona fides of the transactions was shifted to the wife, but, by proving that there was a prior agreement by which the husband, due to his heavy drinking, was allowed to live with the family only if the profits of the farm were shared with the wife and children and that the second farm was purchased from these shares of the wife and children, the wife sustained this burden and the chancellor properly refused to subject the farm to the husband’s debts. Carson v. Johnson, 253 S.W.2d 608, 1952 Ky. LEXIS 1109 ( Ky. 1952 ).

21. — — Fraudulent Conveyance.

Where property, conveyed to the wife, was paid for by the husband, the evidence not being sufficient to show that the relation of creditor and debtor existed between them, the court erred in refusing to subject the same to the payment of plaintiff’s claim, in action under this section. Dickinson v. Johnson, 110 Ky. 236 , 61 S.W. 267, 22 Ky. L. Rptr. 1686 , 1901 Ky. LEXIS 78 ( Ky. 1901 ).

Where a debtor, after creation of the debt in question and a demand from the creditor for payment, conveyed certain realty to his wife pursuant to a parol prenuptial agreement, the creditor was entitled to an attachment lien against the transferred property. Hatcher-Powers Shoe Co. v. Sparks, 237 Ky. 321 , 35 S.W.2d 564, 1930 Ky. LEXIS 850 ( Ky. 1930 ).

Under this section a creditor attempting to subject land in the name of a wife to the debts of her husband has the burden of proving a fraudulent conveyance to the wife, but the burden may be shifted by proof of circumstances inferring fraud, especially where the transaction is inter familia. Carson v. Johnson, 253 S.W.2d 608, 1952 Ky. LEXIS 1109 ( Ky. 1952 ).

22. — Rights of Other Creditors.

After an action has been instituted by an administrator to obtain a settlement of his decedent’s estate, and while such action is pending, a creditor of the decedent who has obtained a judgment against the estate for his demand and a return of nulla bona, cannot, by action under this section, and the procuring of an attachment therein, obtain a preference over other creditors having like demands against the estate of such decedent. Benge's Adm'r v. Creech, 163 Ky. 810 , 174 S.W. 517, 1915 Ky. LEXIS 306 ( Ky. 1915 ).

23. — Appeal.

Where a suit to set aside a fraudulent conveyance has been tried out in the lower court upon the issue as to the validity of the conveyance, it is too late to object upon appeal for the first time that the plaintiff did not have a return of “no property,” and it is immaterial that the defendant died after her answer was filed, and that her devisees, who were made parties, are infants. They stepped into her place as to the further prosecution of the issue. Behan v. Warfield, 90 Ky. 151 , 13 S.W. 439, 11 Ky. L. Rptr. 960 , 1890 Ky. LEXIS 55 ( Ky. 1890 ).

24. — Equitable Proceedings.

Equitable proceedings for enforcing an equitable lien, or for subjecting a known and described equity, are not affected by this and sections of statutes regulating proceedings and attachments on bills of discovery and subjection of property after return of “no property” on execution. Parker v. Meyburg, 62 Ky. 207 (1864) (decided under prior law).

25. — Creation of Lien.

A creditor who, having a return of nulla bona against his debtor, institutes suit in equity to subject the choses in action, equitable or legal interest or other property of his debtor, acquires a lien on such property or effects, on the service on the defendant of a summons, with the objects of the suit indorsed on it. Huffman v. Thomas, 63 Ky. 105 , 1865 Ky. LEXIS 20 ( Ky. 1865 ) (decided under prior law).

Deceased landlord’s estate was entitled to have lessee’s deed, admittedly intended as security for a loan, declared a mortgage and to subject lessee’s interest in lot conveyed, to lien created thereby, in action to collect judgment for rent. Adkins v. Meadows, 9 Ky. Op. 124, 1876 Ky. LEXIS 360 (Ky. Ct. App. Sept. 13, 1876) (decided under prior law).

26. — Priority of Liens.

Lien created by the institution of suit to subject the equitable title to real estate to the satisfaction of a judgment after return of “no property found,” has preference over liens created after institution of the suit for materials furnished and work done. Jones v. Jeffress, 74 Ky. 636 , 1876 Ky. LEXIS 13 ( Ky. 1876 ) (decided under prior law).

Cited:

Kentucky-Tennessee Light & Power Co. v. Fitch, 63 F. Supp. 989, 1946 U.S. Dist. LEXIS 2949 (D. Ky. 1946 ); Counts v. Howes, 98 Ky. 397 , 33 S.W. 395, 1895 Ky. LEXIS 75 (1895); Nunnelley v. Nunnelley, 224 Ky. 345 , 6 S.W.2d 273, 1928 Ky. LEXIS 596 ( Ky. 1928 ); United States Fidelity & Guaranty Co. v. Albert, 248 Ky. 375 , 58 S.W.2d 644, 1933 Ky. LEXIS 250 ( Ky. 1933 ); Turner v. Ewald, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ).

Research References and Practice Aids

Cross-References.

Fraudulent conveyance, action to set aside, KRS 378.030 .

Land adversely held, action to subject to claim, KRS 372.070 .

Venue of action, KRS 452.440 .

Kentucky Law Journal.

Mayne, Creditors’ Bills and Actions to Set Aside Fraudulent Conveyances, 39 Ky. L.J. 103 (1950).

Treatises

Petrilli, Kentucky Family Law, Maintenance, § 25.28.

426.382. Answer to be verified — Court may enforce discoveries.

The answer of each defendant shall be verified by his oath, and not be that of an agent or attorney, and the court shall, if necessary, enforce full and explicit discoveries in such answers by process of contempt.

History. C. C. 440: trans. Acts 1952, ch. 84, § l, effective July 1, 1953.

NOTES TO DECISIONS

1. Satisfaction of Judgment.

The remedy provided by this section through KRS 426.384 for enforcing the satisfaction of judgments where there has been a failure to collect by execution, must be strictly pursued. Proctor v. Bell's Adm'r, 97 Ky. 98 , 30 S.W. 15, 16 Ky. L. Rptr. 823 , 1895 Ky. LEXIS 159 ( Ky. 1895 ).

426.383. Creation of lien on defendant’s property.

A lien shall be created on the property of the defendant by the levy of the attachment; or by service of the summons, with the object of the action indorsed thereon, on the person holding or controlling his property.

History. C.C. 422: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1. Discharge in Bankruptcy.

Where a defendant pleads and shows his discharge in bankruptcy, there can be no personal judgment against him. The remedy of plaintiff was to subject the land upon which the debt was sued to a lien. Boyer v. Lincoln, 11 Ky. Op. 437, 3 Ky. L. Rptr. 537 , 1882 Ky. LEXIS 133 (Ky. Ct. App. Jan. 24, 1882).

2. Creation of Lien.

On a return of “no property” plaintiffs in the execution filed a bill against the defendant for the discovery and subjection of property unknown to the plaintiffs. This bill did not operate as a lien until the discovery was made by the filing of the answer. Such lien, however, is inferior to lien of other judgment creditors who filed a similar action in the meantime, charging that defendant had a vendible interest in certain described land, and prayed for the subjection of it to their debt. Ward's Adm'rs v. Robinson, 64 Ky. 294 , 1866 Ky. LEXIS 142 ( Ky. 1866 ) (decided under prior law).

3. — Petition.

Where land sought to be sold to satisfy judgment was fully described in the petition, it was not indispensable to make the indorsement on the summons in order to give to the court jurisdiction of the subject. Bryant v. Bryant, 20 S.W. 270, 14 Ky. L. Rptr. 358 (1892).

Petition, in action under this section, praying for a general order of attachment, but failing to describe any particular property sought to be subjected to judgment debt, is insufficient to create a lis pendens lien, since a lis pendens can only be asserted in a suit in rem, prosecuted with reasonable diligence, for relief against specific property which is identified by the proceedings to which proceedings the other claimant is an actual party. Morton v. Jones, 136 Ky. 797 , 125 S.W. 247, 1910 Ky. LEXIS 544 ( Ky. 1910 ).

In an action to subject property to the payment of debts the creditor acquired a lien on the property by describing it in the petition. Hatcher-Powers Shoe Co. v. Sparks, 237 Ky. 321 , 35 S.W.2d 564, 1930 Ky. LEXIS 850 ( Ky. 1930 ).

By the filing of the petition in an action on a return of “no property found” and a description of the land in the petition, the appellant acquired a lien on the land, valid as against intervening petitioner who did not allege recording of the lien claimed, and where, in fact, there could be no recording because it was not claimed by virtue of a writing. Clay City Nat'l Bank v. Bush, 280 Ky. 406 , 133 S.W.2d 522, 1939 Ky. LEXIS 132 ( Ky. 1939 ).

4. — Summons.

A creditor, who, having a return of nulla bona against his debtor, institutes suit in equity to subject the choses in action, equitable or legal interest, or other property of his debtor, acquires a lien on such property or effects, on the service on the defendant of a summons, with the objects of the suit indorsed on it. Huffman v. Thomas, 63 Ky. 105 , 1865 Ky. LEXIS 20 ( Ky. 1865 ) (decided under prior law).

In an action on a return of “no property” where the proceeding is to subject property specifically described, no attachment levy is necessary to give a lien as against the defendant in the action. In such case the main object of the action being to subject the property in controversy, and it being sufficiently described in order for identification, an equitable lien is created as against the debtor by the filing of the petition and the service of summons. Murphy v. Cochran's Trustee, 80 Ky. 239 , 3 Ky. L. Rptr. 727 , 1882 Ky. LEXIS 44 (Ky. Ct. App. 1882).

Where suit in equity under this section described the property subject to bank’s claim, and those who claimed to be the owners of the property were made defendants and were actually summoned, such action creates a lis pendens lien upon the property sought to be subjected, without any attachment, or any indorsement on the summons, of the object of the action. Caldwell v. Deposit Bank, 109 Ky. 197 , 58 S.W. 589, 22 Ky. L. Rptr. 684 , 1900 Ky. LEXIS 185 ( Ky. 1900 ).

Where land was described and the interest of defendant set forth in the petition, in action to enforce a judgment against the putative father for the support of a bastard, a lien was created by the service of summons. That the defendant has married the mother constitutes no defense to the action. Alderson v. Alderson's Guardian, 113 Ky. 830 , 69 S.W. 700, 24 Ky. L. Rptr. 595 , 1902 Ky. LEXIS 109 ( Ky. 1902 ).

5. Priority.

Because both the property subject to debtor-corporation’s pre-petition state attachment lien and its amount remained uncertain at the time the federal tax lien was filed, the state attachment liens were not perfected under federal law and the federal tax lien of the IRS retained its priority. United States v. Dishman Indep. Oil, 46 F.3d 523, 1995 FED App. 0039P, 1995 U.S. App. LEXIS 1765 (6th Cir. Ky. 1995 ).

Research References and Practice Aids

Cross-References.

Exception in case of defendant constructively summoned, KRS 454.160 .

426.384. Court may compel surrender of property.

The court shall enforce the surrender of the money or securities therefor, or of any other property of the defendant in the execution, which may be discovered in the action; and the court may use its contempt power in enforcing surrender of the property.

History. C.C. 443: trans. Acts 1952, ch. 84, § 1; 1976, ch. 91, § 40.

NOTES TO DECISIONS

1. Discharge in Bankruptcy.

Where a defendant pleads and shows his discharge in bankruptcy, there can be no personal judgment against him. The remedy of plaintiff was to subject the land upon which the debt was sued to a lien. Boyer v. Lincoln, 11 Ky. Op. 437, 3 Ky. L. Rptr. 537 , 1882 Ky. LEXIS 133 (Ky. Ct. App. Jan. 24, 1882).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insolvent Debtors, § 154.00.

426.390. Execution against the person; when allowed; form; return; estate liable. [Repealed.]

Compiler’s Notes.

This section (1661, 1662) was repealed by Acts 1976, ch. 91, § 46.

426.400. Execution against the person; application for discharge; surrender of property; notice; schedule and oath. [Repealed.]

Compiler’s Notes.

This sections (2180, 2184) was repealed by Acts 1976, ch. 91, § 46.

426.410. Property held for creditors — Sale — Prosecution of actions — Execution against property. [Repealed.]

Compiler’s Notes.

This section (2181, 2182) was repealed by Acts 1976, ch. 91, § 46.

426.420. Choses in action — Petition for discovery — Sale.

Where choses in action are brought into court by virtue of a petition for discovery of assets instituted against an insolvent debtor, the court may order their sale upon the same terms as are prescribed for the sale of other personal property. The court shall make all needful orders for the transfer of title to the purchaser.

History. 2185.

NOTES TO DECISIONS

1. Summons.

Choses in action of insolvent who was discharged under this section were vested in county sheriff, and hence summons to recover debt due to insolvent should be in name of sheriff, and not in that of sergeant of Court of Appeals. White v. Sergeant of Court of Appeals, 17 Ky. 52 , 1824 Ky. LEXIS 137 ( Ky. 1824 ) (decided under prior law).

Cited:

Boden v. McCoy, 278 S.W.2d 68, 1955 Ky. LEXIS 475 ( Ky. 1955 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insolvent Debtors, § 154.00.

426.430. Judgments in equity — How enforced — Issuance and return of execution.

A final order or judgment in equity for money, land or other specific thing may be enforced by any appropriate writ of execution, allowable on a judgment at law, or by the ancient practice of courts of chancery. The writ shall issue and be returnable as other writs of execution.

History. 1663.

NOTES TO DECISIONS

1. Enforcement of Judgment.

Chancellor should not have summarily ordered imprisonment of trustee, where fund had not been placed in his hands by order of court and trustee did not have it in possession, but chancellor should have ordered fund paid over, and upon trustee’s failure to do so, execution should issue. Crofoot's Ex'r v. Duvall's Gdn., 12 Ky. Op. 191, 5 Ky. L. Rptr. 57 , 1883 Ky. LEXIS 199 (Ky. Ct. App. May 26, 1883) (decided under prior law).

By this section the power of the chancellor to carry into execution his judgment “according to the ancient practice of the courts of chancery” is expressly reserved. Rebham v. Fuhrman, 139 Ky. 418 , 50 S.W. 976 ( Ky. 1899 ).

This section must be read in connection with KRS 426.006 , 426.010 , 426.130 , 426.190 , 426.520 , 426.560 , 426.685 , 426.695 , 426.715 , and 451.180 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

An equity court has the right to enforce its judgments by attachment or contempt proceedings. Lincoln Bldg. & Loan Ass'n v. Humphreys, 274 Ky. 359 , 118 S.W.2d 736, 1938 Ky. LEXIS 276 ( Ky. 1938 ).

2. — Contempt.

Mere fact that chancellor has rendered judgment does not authorize him to enforce it by process of contempt regardless of relationship of parties to each other and to court. Graham v. Sheets, 9 Ky. Op. 701, 1877 Ky. LEXIS 426 (Ky. Ct. App. Nov. 17, 1877) (decided under prior law).

Generally, chancellor will not grant process of contempt to do the impossible, and hence attachment and imprisonment will not be granted to require payment of money if contemnor is unable to do so, but if inability of fiduciary arises from his misappropriation of funds he will not be excused. Rudd v. Rudd, 184 Ky. 400 , 214 S.W. 791, 1919 Ky. LEXIS 145 ( Ky. 1919 ).

Court properly enforced by contempt proceedings its judgment that purchaser of mortgaged premises should have title free of encumbrances except taxes for certain year, where purchaser was obliged to pay certain past taxes, and thereupon obtained rule that mortgagee should refund them, which it refused to do. Lincoln Bldg. & Loan Ass'n v. Humphreys, 274 Ky. 359 , 118 S.W.2d 736, 1938 Ky. LEXIS 276 ( Ky. 1938 ).

The enforcement of orders and judgments in equitable justiciable controversies falls within the civil contempt category. Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 ( Ky. 1968 ).

3. — — Alimony.

Failure of husband to comply with divorce decree requiring him to pay monthly sum to wife to support child was enforceable by contempt proceedings and imprisonment until husband purged himself of contempt. Roper v. Roper, 242 Ky. 658 , 47 S.W.2d 517, 1932 Ky. LEXIS 342 ( Ky. 1932 ).

There being no neglect for unreasonable time to proceed and no prejudice to divorced husband, wife did not lose right, by laches, to enforce judgment for accrued alimony by contempt proceedings. Goffinett v. Goffinett, 247 Ky. 698 , 57 S.W.2d 674, 1933 Ky. LEXIS 450 ( Ky. 1933 ).

Where husband is able to pay judgment for alimony, maintenance, and attorney fees, his imprisonment for contempt in failing to pay is not imprisonment for debt. Stinson v. Stinson, 311 Ky. 139 , 223 S.W.2d 727, 1949 Ky. LEXIS 1080 ( Ky. 1949 ).

4. — Execution.

Where alimony was awarded to divorced wife, chancellor could permit its collection by execution, as against contention doing so would divest husband of title to realty in violation of KRS 403.070 . Tyler v. Tyler, 99 Ky. 31 , 34 S.W. 898, 17 Ky. L. Rptr. 1341 , 1896 Ky. LEXIS 44 ( Ky. 1896 ).

A court in a divorce proceeding may compel the husband to pay the costs by awarding an execution or by rule and attachment. Evans v. Stewart, 38 S.W. 697, 18 Ky. L. Rptr. 941 (1897).

Execution was issuable after October 1, upon judgment in divorce action which awarded alimony in certain sum and directed its payment either in cash or cash and secured notes on or before October 1, where defendant did not make payment on or before that date, and hence judgment then became final one to pay certain sum, notwithstanding judgment retained cause on docket for further proceedings to enforce alimony and provided that execution should not “now” issue. Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 486 (Ky.), modified, 183 Ky. 576 , 209 S.W. 339, 1919 Ky. LEXIS 487 ( Ky. 1919 ).

Execution may issue on a judgment of a sum in full for alimony and for all claims under contract for maintenance, but a temporary allowance may be enforced only by rule. Ford v. Ford, 230 Ky. 56 , 18 S.W.2d 859, 1929 Ky. LEXIS 8 ( Ky. 1929 ).

A final judgment in equity for money may be enforced by any appropriate writ of execution or by the ancient practice of courts of chancery. Stinson v. Stinson, 311 Ky. 139 , 223 S.W.2d 727, 1949 Ky. LEXIS 1080 ( Ky. 1949 ).

5. — — Injunction.

Injunction against execution to enforce payment by divorced husband of accumulated amounts for support of child was not proper remedy, remedy would be application to court which rendered judgment. Campbell v. Campbell, 223 Ky. 836 , 4 S.W.2d 1112, 1928 Ky. LEXIS 447 ( Ky. 1928 ), overruled, Knight v. Knight, 341 S.W.2d 59, 1960 Ky. LEXIS 61 ( Ky. 1960 ).

6. — Attachment and Imprisonment.

Although chancery judgments may be enforced by any appropriate writ allowed to enforce law judgments, chancery courts may enforce their orders and decrees by summary mode, attachment and imprisonment. Sebastian v. Rose, 135 Ky. 197 , 122 S.W. 120, 1909 Ky. LEXIS 277 ( Ky. 1909 ).

Process of attachment and imprisonment to enforce chancery decrees, although not so much used as formerly, still exists. Napier v. Napier, 198 Ky. 233 , 248 S.W. 529, 1923 Ky. LEXIS 415 ( Ky. 1923 ), overruled, Gibson v. Stiles, 240 S.W.2d 609, 1951 Ky. LEXIS 995 ( Ky. 1951 ), overruled in part, Gibson v. Stiles, 240 S.W.2d 609, 1951 Ky. LEXIS 995 ( Ky. 1951 ), over’d on other grounds, Gibson v. Stiles, 240 S.W.2d 609, 1951 Ky. LEXIS 995 (Ky. 1951). See Rebham v. Fuhrman, 139 Ky. 418 , 50 S.W. 976 ( Ky. 1899 ); Rudd v. Rudd, 184 Ky. 400 , 214 S.W. 791, 1919 Ky. LEXIS 145 ( Ky. 1919 ).

Ancient remedy for enforcement of chancery decrees by attachment and imprisonment still existing in state, order committing divorced husband to jail for persistent noncompliance with alimony decree was not void. Hembree v. Hembree, 208 Ky. 658 , 271 S.W. 1100, 1925 Ky. LEXIS 361 ( Ky. 1925 ).

7. — Divorce Costs.

In divorce proceeding, court could compel husband to pay expense of litigation by awarding execution or by rule and attachment. Ballard v. Caperton, 59 Ky. 412 , 1859 Ky. LEXIS 127 ( Ky. 1859 ) (decided under prior law).

Cited:

Miller v. Miller, 335 S.W.2d 573, 1960 Ky. LEXIS 274 ( Ky. 1960 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Execution Against Property (KRS 426.020 ), Form 151.01.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Habere Facias Possessionum (Execution for Possession of Land), with Fieri Facias for Damages, Form 151.03.

Petrilli, Kentucky Family Law, Court Procedure, § 23.1.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.2, 25.8, 25.27, 25.28.

426.440. Property levied on but unsold — Writ authorizing and commanding sale — Form of — Proceedings.

  1. When the sheriff or other officer makes a return on an execution that the estate levied on, or any part thereof, remains in his hands unsold, a writ authorizing and commanding the sheriff to sell the property may issue.
  2. The writ shall be in substance as follows:
  3. Like proceedings shall be had on the writ as might and should have been had on the first execution. An officer may, at any time after the return day while the original execution is in his hands, sell any property taken in virtue thereof, provided the levy was made before the return day.

“The Commonwealth of Kentucky, to the sheriff of County, greeting: We command you that you expose to sale the estate of A B to the value of $ , which, according to our command, you have taken into your hands, and which remains in your hands unsold, as you have certified to our court, to satisfy C D, the sum of $ , whereof in our said court he had recovered execution against the said A B, by virtue of a judgment in the said court, and that you have, and so forth.”

Click to view

History. 1664.

NOTES TO DECISIONS

1. Sale of Property.

The venditioni exponas issued after return of execution merely compelled sheriff to perform duty under original writ, it could not require him to advertise again or do any act which he had previously done. Cox v. Joiner, 7 Ky. 94 , 1815 Ky. LEXIS 59 ( Ky. 1815 ) (decided under prior law). See Carlisle v. Carlisle, 9 Ky. Op. 167, 1876 Ky. LEXIS 380 (Ky. Ct. App. Oct. 12, 1876).

Writ of vendoniti exponas gives no new authority to sheriff as regards sale of property upon which he made levy, but merely commands him to perform duty under original writ. Colyer v. Higgins, 62 Ky. 6 , 1863 Ky. LEXIS 4 ( Ky. 1863 ). See Irvin & Bullock v. Picket, 6 Ky. 343 , 1814 Ky. LEXIS 58 ( Ky. 1814 ); Keith v. Wilson, 60 Ky. 201 , 1860 Ky. LEXIS 51 ( Ky. 1860 ) (decided under prior law).

Venditioni exponas was not necessary to confer upon sheriff authority to sell under original execution that had never been returned to clerk’s office, although time for such return had expired. Bramel v. Burden, 13 Ky. Op. 477, 7 Ky. L. Rptr. 97 , 1885 Ky. LEXIS 219 (Ky. Ct. App. May 21, 1885) (decided under prior law).

Provision of subsection (3) of this section does not shorten time for execution sale existing under common-law rule that such sale may be had on return day, notwithstanding omission of words “expiration of.” United States v. Hogg, 112 F. 909, 1902 U.S. App. LEXIS 3909 (6th Cir. Ky. 1902 ).

A writ of venditioni exponas confers no new authority on the sheriff but merely directs him to perform his duty under the execution. Fannin's Ex'r v. Haney, 283 Ky. 68 , 140 S.W.2d 630, 1940 Ky. LEXIS 277 ( Ky. 1940 ).

2. — Amendment of writ.

It would have been proper to permit amendment of writ of venditioni exponas issued by Bank of Kentucky, but erroneously styling plaintiff as Centre Bank of Kentucky, by striking out word “Centre,” thus making it conform to other papers giving correct name. Bank of Kentucky v. Lacy, 17 Ky. 7 , 1824 Ky. LEXIS 116 ( Ky. 1824 ) (decided under prior law).

3. — Second Execution.

Second execution was properly issued rather than a venditioni exponas, where sheriff had returned first execution as stayed for three months, and second execution was issued after that time. Burks v. Bass, 7 Ky. 338 , 1816 Ky. LEXIS 47 ( Ky. 1816 ) (decided under prior law).

After injunction which stayed execution was dissolved, execution creditor properly issued new execution rather than venditioni exponas. Lockridge v. Biggerstaff, 63 Ky. 281 , 1865 Ky. LEXIS 67 ( Ky. 1865 ) (decided under prior law).

4. Authority and Responsibility of Sheriff.

The writ under this section does not vest the sheriff with any authority or duty he does not already possess by virtue of having undertaken the execution and although creditors typically provide guidance to the sheriff, the obligations to locate subject property, to levy upon it appropriately, and to conduct a valid sale are ultimately the responsibility of the sheriff alone. Nesler v. Hailey, 898 S.W.2d 536, 1995 Ky. App. LEXIS 107 (Ky. Ct. App. 1995).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.450. Replevy of judgment allowed before execution issues — Form of bond.

  1. Any person against whom a judgment for money is rendered, except as provided in KRS 426.470 , may, if an execution thereon has not been placed in the hands of a collecting officer, replevy the judgment for three (3) months before the circuit court clerk by giving bond with good surety to be approved by the officer.
  2. The bond, varied to suit the particular case, may be in substance as follows: “This day the defendant AB, together with CD, his surety come before the Clerk of the  _________  Court, and undertake that they will satisfy and pay EF or the Commonwealth of Kentucky, the judgment, including interest, if any, and costs amounting to $ _________ , rendered against AB, by this Court, within three (3) months with legal interest on the whole amount thereof from this date.”

History. 1667: amend. Acts 1966, ch. 225; 1976, ch. 91, § 41; 1976 (Ex. Sess.), ch. 14, § 429, effective January 2, 1978.

NOTES TO DECISIONS

1. Replevin Bond.

Replevin bonds required by statute are valid common-law obligations even when not executed according to statutory requirements. Issued bond, whether statutorily required or not, is good at common law if executed voluntarily for valid consideration, and not repugnant to letter or policy of law. Thompson v. Buckhannon, 25 Ky. 416 , 1829 Ky. LEXIS 118 ( Ky. 1829 ) (decided under prior law).

Replevin bonds, postponing payment of judgment for six (6) months and not three, were not statutory bonds upon which execution could issue, but were common-law bonds binding upon obligators after plaintiff had refrained for six (6) months from enforcing judgment. Vertrees v. Shean, 59 Ky. 291 , 1859 Ky. LEXIS 100 ( Ky. 1859 ) (decided under prior law).

Replevin bonds which postponed payment of a judgment for six (6) months rather than three are not statutory bonds which can be subject to execution but are common-law bonds which bind the obligor if plaintiff has not enforced the judgment within six (6) months. Hardwick Woolen Mills v. Ball Bros., 223 Ky. 185 , 3 S.W.2d 175, 1928 Ky. LEXIS 288 ( Ky. 1928 ).

Valid bond under this section satisfies judgment, and liability thereafter attaches to and must be enforced under the bond and not under the judgment. Ewing v. Union Cent. Bank, 254 Ky. 623 , 72 S.W.2d 4, 1934 Ky. LEXIS 118 ( Ky. 1934 ).

A judgment is extinguished by the execution of a replevin bond, and the suit must thereafter be brought on the bond, and the bond is prima facie evidence of the validity of the judgment replevied. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

2. — Void Judgment.

Taking of replevin bond by sheriff was unauthorized and sale under execution issued thereunder was void, where personal judgment against defendant was void because he had not been served or appeared in action. Merrett v. Moss, 5 Ky. Op. 596, 1869 Ky. LEXIS 556 (Ky. Ct. App. June 11, 1869) (decided under prior law).

Personal judgment against owner, being unauthorized under mechanic’s lien law, was void, and replevin bond taken under judgment could be quashed on motion of owner. Seiglestyle v. Diesenroth, 75 Ky. 296 , 1876 Ky. LEXIS 80 ( Ky. 1876 ) (decided under prior law).

If judgment which bond replevies is void, the only way in which obligors could avoid it would be to quash the bond and proceedings thereunder. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

3. — Appeal.

Replevin of judgment by giving bond does not preclude appeal from judgment. Nashville, C. & S. L. R. Co. v. Bean's Ex'r, 128 Ky. 758 , 109 S.W. 323, 33 Ky. L. Rptr. 114 , 1908 Ky. LEXIS 93 (Ky. Ct. App. 1908).

4. — Motion to Quash.

Where judgment is rendered against two or more, replevin bond leaving out one of judgment debtors may be quashed by judgment creditor. Fulkerson v. Caldwell, 24 Ky. 496 , 1829 Ky. LEXIS 328 ( Ky. 1829 ) (decided under prior law).

Question of whether obligor of bond to replevy judgment against him had been released by conduct of judgment creditor could not be raised on notice to quash bond, but only when judgment creditor issued execution against obligor. Stevens v. Quisenberry, 8 Ky. Op. 445, 1875 Ky. LEXIS 163 (Ky. Ct. App. Mar. 18, 1875) (decided under prior law).

Unless motion to quash replevin bond, in which only portion of defendants join, be made within reasonable time after it is executed and returned, and before plaintiff has acted so as to show his intention to waive right to hold all defendants, bond must be presumed to have been accepted in satisfaction of judgment. Hughes's Adm'r v. Hardesty, 76 Ky. 364 , 1877 Ky. LEXIS 68 ( Ky. 1877 ) (decided under prior law).

5. — Effect on Lien.

Vendor’s lien still existed, notwithstanding holder thereof coerced payment at law, and recovered judgment, which was replevied by bond, the bond satisfied the judgment, but did not cause forfeiture of lien. Foster v. Simmons' Adm'r, 10 Ky. Op. 74, 1878 Ky. LEXIS 144 (Ky. Ct. App. Oct. 12, 1878) (decided under prior law).

6. — Release of Sureties.

Bond to replevy judgment, in which sureties to original debt did not join, merged the judgment and released them from liability as effectually as if creditors who did not timely quash the bond, had given them formal release. Havens v. Foudry, 61 Ky. 247 , 1863 Ky. LEXIS 49 ( Ky. 1863 ) (decided under prior law).

7. — Release of Debtor.

Bond which replevied judgment against two debtors merged the judgment and released from liability on judgment one of debtors who was surety for original debt and who did not execute replevin bond. Hoskins v. Parsons, 58 Ky. 251 , 1858 Ky. LEXIS 44 ( Ky. 1858 ). See Gray v. Merrill, 74 Ky. 633 , 1876 Ky. LEXIS 12 ( Ky. 1876 ) (decided under prior law).

Opinions of Attorney General.

The defendant may replevy a money judgment, if an execution thereon has not been placed in the hands of a collecting officer, for three months before the police judge entering the judgment, by giving bond with good surety to be approved by the judge. OAG 65-177 .

Where a defendant is convicted and does not replevy and does not pay the fine and costs, he shall be put in jail. And he is given a credit of $2.00 or $1.00 per day, depending upon whether he is worked or not, toward the payment of the fine and costs. If that occurs, i.e., if he satisfies such costs by merely being in jail, or working in jail, it means that the arresting officer would not recover his arresting fees because the county is not responsible for paying the costs, including arresting fees and thus the arresting fees will go unpaid. OAG 67-175 .

In a replevin bond, the judge shall provide for legal interest. OAG 68-526 .

The capias and jail procedure outlined in this section does not result in an unconstitutional imprisonment for failure to pay a debt. OAG 71-439 .

A court imposing a fine which is replevied is not barred from withdrawing execution against the surety and issuing a capias pro fine against the principal when the surety has failed to satisfy the fine. OAG 73-692 .

Under KRS 534.020 a judge may find someone guilty and then legally allow the fine to be paid in monthly installments but if no such provision for paying the fine is made a part of the sentence, the fine shall be payable forthwith except when the defendant makes a satisfactory replevin bond under this section but when a replevin bond is not executed and defendant defaults in paying the fine, under KRS 534.060 the court may require the defendant to show cause why he should not be imprisoned for nonpayment. OAG 75-4 .

The suretyship on a replevin bond may not be conditioned on the principal not being taken into custody on another charge and the surety, whether he be gratuitous or paid, has no right to request that he be removed as surety if the principal/defendant is in custody on another charge. OAG 75-296 .

Research References and Practice Aids

Cross-References.

Judgments in name of the Commonwealth, not to be replevied, exceptions, KRS 135.100 .

Response to nonpayment of fines, KRS 534.060 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Replevin Bond Before Execution Issues, Form 151.10.

426.460. Executions that may be replevied — Form of bond.

  1. Any execution on a judgment, which could be replevied before the execution issued, may be replevied for three (3) months at any time before a sale of property under the same, by the defendant giving to the officer a bond with good surety payable to the plaintiff, for the amount thereof including interest, costs, and half commission up to that time.
  2. The bond shall be in substance as follows: “We, A B, principal, and E F, surety, do bind ourselves, three (3) months after the date hereof, to pay C D, the plaintiff in execution, the sum of $ _________ , to bear interest from this date, being the amount of an execution which issued from the clerk’s office of the  _________  court, on the  _________  day of  _________  in favor of the said C D, for the sum of $ _________  debt or damages, $ _________  interest, $ _________  cost of suit, $ _________  sheriff’s (or constable’s) half commission, amounting in the whole to the sum of $ _________  aforesaid, against the said A B; and we, A B and E F, his surety have hereby replevied the same. Witness our hands this  _________  day of  _________ , 19 _________ .”

History. 1669: amend. Acts 1976 (Ex. Sess.), ch. 14, § 430, effective January 2, 1978.

NOTES TO DECISIONS

1. Replevy of Execution.

Replevin bond should recite execution supporting and identifying it, show authority by which it was taken, should be for proper amount demandable and should sufficiently secure that sum to be paid at time required by law. Handley v. Rankins, 20 Ky. 554 , 1827 Ky. LEXIS 84 ( Ky. 1827 ) (decided under prior law).

Replevin bond taken by sheriff would not be valid, either as common-law or statutory bond, unless at time of delivery the officer had legal authority to coerce that amount from principal debtor. Cook v. Bank of Kentucky, 28 Ky. 163 , 1830 Ky. LEXIS 403 ( Ky. 1830 ) (decided under prior law).

Replevin bond executed to prevent levy of execution upon defendant’s property, under judgment obtained by unauthorized method of service, was executed under duress and without consideration, and was void, and proceedings to enforce the execution and the replevin bond may be enjoined. Jones v. Fuller, 280 Ky. 671 , 134 S.W.2d 240, 1939 Ky. LEXIS 192 ( Ky. 1939 ).

2. — Bond Given After Return.

Sheriff, who levied during lifetime of execution and was in actual or constructive possession of property seized, was authorized to take replevin bond even after return day. Savings Institution of Harrodsburg v. Chinn's Adm'r, 70 Ky. 539 , 1870 Ky. LEXIS 122 ( Ky. 1870 ) (decided under prior law).

3. — Dating of Bond.

Bond to replevy execution was valid, notwithstanding it was dated before date of execution, where presumption obtained that there was mistake in dates and not that bond was taken before execution issued. Cook v. Bank of Kentucky, 28 Ky. 163 , 1830 Ky. LEXIS 403 ( Ky. 1830 ) (decided under prior law).

It was immaterial whether replevin bonds were dated when signed by surety, since delivery makes them binding on him, and sheriff should have filled blanks for date of delivery. Bettis v. Bailey, 65 Ky. 608 , 1866 Ky. LEXIS 214 ( Ky. 1866 ) (decided under prior law).

4. — Signed in Blank.

Since replevin bond takes effect by delivery, it is immaterial that it was signed before blanks as to principal sum dischargeable and costs were filled. Clarke v. Bell, 12 Ky. 162 , 1822 Ky. LEXIS 194 ( Ky. 1822 ) (decided under prior law).

Replevin bond, signed in blank and afterwards acknowledged before sheriff, is valid, delivery of bond taking effect upon acknowledgment before sheriff and presumption being that blanks were filled before acknowledgment. Logan v. Doniphan, 25 Ky. 251 , 1829 Ky. LEXIS 80 ( Ky. 1829 ) (decided under prior law).

5. — Interest.

Officer should make bond aggregating principal, interest and costs, including his commissions, bear interest from time of replevin. Hatcher v. Kelly & Brent, 4 Ky. 282 , 1808 Ky. LEXIS 222 ( Ky. 1808 ) (decided under prior law).

Bond to replevy execution was not invalid although it bound obligors to pay principal, interest, and costs, with interest. Handley v. Rankins, 20 Ky. 554 , 1827 Ky. LEXIS 84 ( Ky. 1827 ) (decided under prior law).

6. — Invalid Judgment.

Bond to replevy execution upon judgment rendered by justice’s court in excess of jurisdiction and therefore void was invalid either as statutory or commonlaw bond. Florrance v. Goodin, 44 Ky. 111 , 1844 Ky. LEXIS 84 ( Ky. 1844 ) (decided under prior law).

7. — Incomplete Joinder by Defendants.

Objection that bond to replevy execution was not executed by all defendants can be raised only by plaintiff or obligee. Stevens v. Wallace, 21 Ky. 404 , 1827 Ky. LEXIS 180 ( Ky. 1827 ) (decided under prior law).

Plaintiff may quash replevin bond when all execution defendants did not unite in executing it. Stevens v. Wallace, 21 Ky. 404 , 1827 Ky. LEXIS 180 ( Ky. 1827 ). See Commonwealth use of Slaughter v. Fisher, 25 Ky. 137 , 1829 Ky. LEXIS 49 ( Ky. 1829 ); Williamson v. Logan, 40 Ky. 237 , 1841 Ky. LEXIS 21 ( Ky. 1841 ) (decided under prior law).

It was irregular for sheriff to allow replevin bond to be executed unless all execution defendants joined it it, yet bond having been taken was valid as replevin bond until quashed by court order on plaintiff’s motion. Kouns v. Bank of Kentucky, 41 Ky. 303 , 1842 Ky. LEXIS 31 ( Ky. 1842 ) (decided under prior law).

Execution plaintiff was not bound to accept replevin bond which was not signed by all execution defendants. Southern Bank Ky. v. White & McMahan, 62 Ky. 290 , 1864 Ky. LEXIS 64 ( Ky. 1864 ). See Stevens v. Quisenberry, 8 Ky. Op. 445, 1875 Ky. LEXIS 163 (Ky. Ct. App. Mar. 18, 1875) (decided under prior law).

8. — Wrong Defendant Named.

Bond to replevy execution was fatally defective where person named as defendant in execution varied from person named in judgment, as to him, execution was unauthorized and void. Bridges v. Caldwell's Ex'rs, 9 Ky. 195 , 1820 Ky. LEXIS 7 ( Ky. 1820 ) (decided under prior law).

9. — Errors in Form.

Bond, even if for too great a sum, should not be quashed, but amount could be corrected by court. Sanders v. Kentucky Ins. Co., 7 Ky. 471 , 1816 Ky. LEXIS 128 ( Ky. 1816 ) (decided under prior law).

Bond to replevy execution was not vitiated, although it did not name sheriff who took it, but showed that bond was taken to relieve goods seized under execution, and return sufficiently determined who took it. Bridges v. Caldwell's Ex'rs, 9 Ky. 195 , 1820 Ky. LEXIS 7 ( Ky. 1820 ) (decided under prior law).

Bond to replevy execution was not vitiated by erroneous inclusion of small fee of sheriff for writing it, remedy was by indorsing credit of that amount. Bridges v. Caldwell's Ex'rs, 9 Ky. 195 , 1820 Ky. LEXIS 7 ( Ky. 1820 ) (decided under prior law).

Bond to replevy execution was not vitiated by irregularity of making it payable to sheriff instead of to execution plaintiff. Byrne v. Caldwell, 12 Ky. 125 , 1822 Ky. LEXIS 179 ( Ky. 1822 ) (decided under prior law).

Replevin bond which was drawn in first person plural and subscribed by principal and surety was valid as bond of both, despite omission of name of surety in body of bond. Clarke v. Bell, 12 Ky. 164 , 1822 Ky. LEXIS 195 ( Ky. 1822 ) (decided under prior law).

Bond to replevy execution which conformed to judgment should not be quashed, where judgment, even if erroneous in being rendered in name of decedent’s heirs without naming them individually, was not void for uncertainty. Shackleford v. Fountain's Heirs, 17 Ky. 252 , 1824 Ky. LEXIS 207 ( Ky. 1824 ) (decided under prior law).

Inaccuracies of officer, such as error in making bond to replevy execution payable in twelve months and not in express terms two years, as statutorily required, do not vitiate it as statutory bond, where it contains characteristic stipulations of replevin bond. Hopkins v. Chambers, 23 Ky. 257 , 1828 Ky. LEXIS 84 ( Ky. 1828 ) (decided under prior law).

Want of attestation or omission of some duty by officer, would not vitiate bond to replevy execution as statutory bond, if merely faulty it might be quashed upon timely motion. Prather v. Harlan & Thompson's Adm'r, 69 Ky. 185 , 1869 Ky. LEXIS 129 ( Ky. 1869 ) (decided under prior law).

Opinions of Attorney General.

The suretyship on a replevin bond may not be conditioned on the principal not being taken into custody on another charge and the surety, whether he be gratuitous or paid, has no right to request that he be removed as surety if the principal/defendant is in custody on another charge. OAG 75-296 .

Research References and Practice Aids

Cross-References.

Response to nonpayment of fines, KRS 534.060 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Replevin Bond After Delivery of Execution to Officers, Form 151.11.

426.470. Judgments and executions that may not be replevied.

A judgment to enforce a lien, or against any collecting officer, attorney at law or agent for a delinquency or default in executing or fulfilling his duties, or of a surety against his principal, or upon a debt due by obligation having the force of a judgment, or for specific property or for the property or its value, shall not be replevied. An execution on a sale, replevin or forthcoming bond shall not be replevied.

History. 1668.

426.480. Agreement to waive right to replevy.

An agreement to waive the right to replevy, or any other legal agreement in relation to any judgment, if entered on the record among the orders of court, shall be specifically enforced. The proper endorsement shall be made on the execution by the clerk or judge.

History. 1670: amend. Acts 1976 (Ex. Sess.), ch. 14, § 431, effective January 2, 1978.

426.490. Sale bond — Where no replevin and sale made on three months’ time — Form.

  1. If the right to replevy exists and is not exercised, sales under execution shall be on a credit of three (3) months, upon the purchaser giving bond with good surety to the plaintiff in execution for the payment of the sale money, bearing interest from date.
  2. The bond shall be in substance as follows: “We, A B, principal, and C D, surety, do bind ourselves to pay to E F, within three (3) months from the date hereof, the sum of $ _________ , with interest thereon from this date, being the purchase money for (here set out the several items of the property so purchased, with the price of each) which was this day sold by G H, sheriff (or constable and so forth, as the case may be), of  _________  County, in satisfaction of an execution which issued from the office of the clerk of the  _________  court, on the  _________  day of  _________ , in favor of E F against M O, for the sum of $ _________ , debt of damages, with interest and costs. Given under our hands this  _________  day of  _________ , 19 _________ .”

History. 1674: amend. Acts 1976 (Ex. Sess.), ch. 14, § 432, effective January 2, 1978.

NOTES TO DECISIONS

1. Sale Bond.

Sale bond satisfied and merged the original judgment pro tanto, and to that extent judgment could not be enforced otherwise than by execution on bond. Hanna, Hart & Co. v. Guy, 66 Ky. 91 , 1867 Ky. LEXIS 133 ( Ky. 1867 ) (decided under prior law).

Sale bond, even if payable to sheriff instead of to judgment creditors and having other alleged defects, was enforceable as common-law obligation, although not good as statutory bond authorizing execution. Holliday v. Whittaker, 222 Ky. 596 , 1 S.W.2d 1062, 1928 Ky. LEXIS 215 ( Ky. 1928 ). See W. T. Sistrunk & Co. v. Whitaker, 218 Ky. 566 , 291 S.W. 781, 1927 Ky. LEXIS 199 ( Ky. 1927 ).

2. — Satisfaction.

Sale bond should be deemed satisfied, where it was given by purchaser at execution sale of mortgaged chattel, and purchaser, on subsequently finding that chattel was mortgaged, paid off mortgagee and paid remainder of bond to creditor. Commodari v. Hart-Commodari Const. Co., 262 Ky. 774 , 91 S.W.2d 8, 1936 Ky. LEXIS 84 ( Ky. 1936 ).

3. — Failure of Consideration.

Executions upon land were satisfied and lien extinguished when sheriff sold the land and purchaser gave sale bond for amount of debts of execution creditors, notwithstanding consideration of sale bond failed. Ettlinger & Borries v. Tansey, 56 Ky. 364 , 1856 Ky. LEXIS 38 ( Ky. 1856 ) (decided under prior law).

4. — Execution Set Aside.

Sale bond was properly vacated on motion of principal obligor, where execution sale of land was set aside. Wilson v. Percival, 31 Ky. 419 , 1833 Ky. LEXIS 107 ( Ky. 1833 ) (decided under prior law).

5. — Property Not Debtor’s.

Where sheriff sold under execution personal property which did not belong to debtor and purchaser gave sale bond, but true owner recovered the property from purchaser, execution creditor, who was not instrumental in causing the property to be sold, was entitled to benefit of sale bond. M’Ghee v. Ellis, 14 Ky. 244 , 4 Litt. 244, 1823 Ky. LEXIS 171 ( Ky. 1823 ), overruled, Holbrook v. Combs, 227 Ky. 174 , 12 S.W.2d 281, 1928 Ky. LEXIS 474 (1928), overruled in part, Holbrook v. Combs, 227 Ky. 174 , 12 S.W.2d 281, 1928 Ky. LEXIS 474 (1928) (decided under prior law).

Enforcement of sale bond should be enjoined, where property, which was not in fact property of debtor and which purchaser could never enjoy, was sold at instance of creditor. Brummel v. Hurt, 26 Ky. 709 , 1830 Ky. LEXIS 167 ( Ky. 1830 ) (decided under prior law).

6. — Joint Bond.

Sale bond, which was irregular in that it was joint bond payable to several creditors, should not have been quashed at instance of obligors who voluntarily signed it, since being a valid common-law obligation although not a statutory bond, it could have been quashed at instance of obligees. Cooper, Murrell & Reed v. Hatter, 24 Ky. 357 , 1829 Ky. LEXIS 286 ( Ky. 1829 ) (decided under prior law).

Sale bond taken for aggregate amount of executions and payable jointly to three creditors was not void, but irregular, and quashable by proper proceedings. Spradlin v. Pieratt, 75 Ky. 496 , 1877 Ky. LEXIS 107 ( Ky. 1877 ) (decided under prior law).

7. — Excess Sum.

Sale bond, although mistakenly taken in excessive sum, should not be quashed, but credit for excess, as tendered by obligees, should be ordered. Rudd v. Schlatter, 11 Ky. 19 , 1822 Ky. LEXIS 7 ( Ky. 1822 ) (decided under prior law).

8. — Irregular Form.

Bond which is valid to any extent, as common-law obligation, even if irregular as statutory bond, should not be quashed, where obligees oppose its quashal. Debard v. Crow, 30 Ky. 7 , 1831 Ky. LEXIS 296 ( Ky. 1831 ) (decided under prior law).

Cited:

Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

Research References and Practice Aids

Cross-References.

Sale bond, interest on, to whom payable, enforcement, KRS 451.180 .

ALR

Validity of execution or judicial sale had for cash as affected by acceptance of check or promissory note in satisfaction of bid. 86 A.L.R.2d 299.

426.500. Surplus proceeds of sale — Disposition.

  1. If the property sold on credit sells for more than necessary to satisfy the execution, costs and commission, the officer making the sale shall take a bond payable to the defendant, the owner of the property, but otherwise similar to and having like force and effect as that provided for in KRS 426.490 , for the excess.
  2. If the property is sold for cash, any excess after satisfying the execution, charges and commissions shall be paid over by the officer to the defendant whose property is sold.

History. 1675.

NOTES TO DECISIONS

1. Application.

This section does not apply to sales under KRS 426.290 , but only to sales where property is not divisible and title passes by sale. Cotton v. Cotton, 136 Ky. 54 , 123 S.W. 331, 1909 Ky. LEXIS 457 (Ky. Ct. App. 1909).

2. Option of Defendant.

Where surplus was realized by separate sale of six (6) lots, debtor should have option to have certain lots excluded, and surplus still resulting paid to him, or, he could accept entire surplus and let sales stand. Marcum v. Thompson, 222 Ky. 702 , 2 S.W.2d 392, 1928 Ky. LEXIS 241 ( Ky. 1928 ).

Cited:

United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff’d in part, rev’d in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. 1989).

Opinions of Attorney General.

Costs of hiring a wrecker to take a car, seized for sale to satisfy taxes, to the sale location is a legitimate charge to be deducted from the sale price before the surplus is turned over to the taxpayer. OAG 69-598 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

426.510. Motions authorized by KRS 426.010 to 426.500 or 426.990 — Limitation.

Any motion authorized by KRS 426.010 to 426.500 or 426.990 shall be commenced within two (2) years after the cause of the motion accrues.

History. 1719.

426.520. Appraisal of real property before judicial sale.

  1. Before any real property is to be sold under an order or judgment of a court, other than an execution, the commissioner or other officer selling the property shall have it appraised, under oath, by two (2) disinterested, intelligent housekeepers of the county, who may be sworn by the officer. If they disagree, the officer shall act as umpire. If only a part of a tract of land is sold, the part sold shall, after the sale, be revalued in like manner.
  2. The appraisal made shall be in writing, signed by the persons making it, and returned by the commissioner or officer to the court which made the order or rendered the judgment for the sale of the property. Prior to the sale, the appraisal shall be filed among the papers of the cause in which the judgment was rendered or the order made, and entered on the records of the court.

History. 2362, 2363; 2012, ch. 39, § 2, effective July 12, 2012.

NOTES TO DECISIONS

1. Application.

Since assignee under voluntary deed of assignment was authorized under KRS 381.190 to sell realty at private sale, no appraisement before such private sale was required, as this section only requires appraisement when public sale is made. Kentucky Distilleries & Warehouse Co. v. Blanton, 149 F. 31, 1906 U.S. App. LEXIS 4413 (6th Cir. Ky. 1906 ), cert. denied, 205 U.S. 543, 27 S. Ct. 790, 51 L. Ed. 922, 1907 U.S. LEXIS 1433 (U.S. 1907).

This section does not apply to sale of indivisible land and partition of proceeds pursuant to former KRS 389.020 . Green v. Thomson, 168 Ky. 40 , 181 S.W. 662, 1916 Ky. LEXIS 505 ( Ky. 1916 ).

This section applies to sales under KRS 395.515 . Ware's Guardian v. Ware, 233 Ky. 109 , 25 S.W.2d 56, 1930 Ky. LEXIS 512 ( Ky. 1930 ).

This section is peremptory and applies to sales of land by corporate receiver under judgment of court. Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

This section applies only to coercive sales for debt. McCool v. O'Brien, 289 Ky. 729 , 160 S.W.2d 28, 1942 Ky. LEXIS 632 ( Ky. 1942 ).

This section is not applicable to sales of real property pursuant to former KRS 389.020 . Hollon v. Rose, 268 S.W.2d 641, 1954 Ky. LEXIS 917 ( Ky. 1954 ).

This section and KRS 426.530 do not apply to sales of land for indivisibility. Maynard v. Boggs, 735 S.W.2d 342, 1987 Ky. App. LEXIS 543 (Ky. Ct. App. 1987).

2. Appraisement.

Judicial sale of land without appraisement was void, and was not saved by evidence that sale in fact was at fair price and for more than two thirds of any fair valuation. Graves v. Long, 87 Ky. 441 , 9 S.W. 297, 10 Ky. L. Rptr. 414 , 1888 Ky. LEXIS 92 ( Ky. 1888 ) (decided under prior law).

Appraisers need not go upon property, if they know it, they are only required to have knowledge of property to enable them to fix value, presumption obtains that their duty was properly performed. Zable v. Masonic Sav. Bank, 16 S.W. 588, 13 Ky. L. Rptr. 197 (1891) (decided under prior law).

Presumption is that appraisers have done their duty properly. Kidd v. Stephens, 174 Ky. 381 , 192 S.W. 44, 1917 Ky. LEXIS 181 ( Ky. 1917 ).

Although good practice requires appraisers to discuss and agree on valuation, it does not show fraud where one of them fixed valuation and other subsequently not in his presence agreed to it. Southwood v. Willis, 222 Ky. 782 , 2 S.W.2d 660, 1928 Ky. LEXIS 256 ( Ky. 1928 ).

Appraisers need not go on the land if they know the land so that they might fix its value and the presumption is that their duty was properly done. Southwood v. Willis, 222 Ky. 782 , 2 S.W.2d 660, 1928 Ky. LEXIS 256 ( Ky. 1928 ). See Kidd v. Stephens, 174 Ky. 381 , 192 S.W. 44, 1917 Ky. LEXIS 181 ( Ky. 1917 ).

Where a sole asset of a partnership was oil and gas leasehold and equipment, an action primarily to settle partnership and incidentally to settle partnership debts from proceeds of sale did not make the sale of the lease a coercive one for debt, and hence appraisement under this section was unnecessary. McCool v. O'Brien, 289 Ky. 729 , 160 S.W.2d 28, 1942 Ky. LEXIS 632 ( Ky. 1942 ).

A woman, as well as her husband, may be a housekeeper, and is qualified to act as an appraiser. Moore v. Brookins, 291 Ky. 533 , 165 S.W.2d 30, 1942 Ky. LEXIS 269 ( Ky. 1942 ).

The fact that one of the appraisers was the wife of a former sheriff who had a small claim for costs payable from the proceeds of the sale did not disqualify her as an appraiser. Moore v. Brookins, 291 Ky. 533 , 165 S.W.2d 30, 1942 Ky. LEXIS 269 ( Ky. 1942 ).

3. — Separate Parcels.

Where decedent’s land consisted of several parcels, it was error to appraise them together and fix an aggregate value. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

4. — Settlement of Estate.

Since sale of land to pay decedent’s debts is a coercive sale, and not merely one to divide proceeds, appraisement was required before sale. Vivion's Adm'r v. Vivion, 50 S.W. 984, 21 Ky. L. Rptr. 102 (1899).

Land sold pursuant to KRS 395.515 to settle decedent’s estate must be appraised as provided in this section. Ware’s Guardian v. Ware, 233 Ky. 109 , 25 S.W.2d 56, 1930 Ky. LEXIS 512 ( Ky. 1930 ). See Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

5. — Revaluation After Sale.

Judicial sale of land was vitiated by failure to have appraisal made of that part of larger tract which was separated by the judgment from residue and ordered to be sold, notwithstanding entire tract had been appraised. Meddis v. Fenley, 98 Ky. 432 , 33 S.W. 197, 17 Ky. L. Rptr. 974 , 1895 Ky. LEXIS 72 ( Ky. 1895 ).

Setting aside of sale was proper, where appraisement of 50 acres was made as entirety, but after sale of 16 acres no separate appraisement was made of it, or of 34 acres subsequently sold. Koontz v. Butler, 238 Ky. 406 , 38 S.W.2d 204, 1931 Ky. LEXIS 245 ( Ky. 1931 ).

6. — Mechanic’s Lien.

Direction in decree enforcing mechanic’s lien that there should be no appraisement of the property was error, as this section mandatorily requires appraisement. Carter v. Rains, 248 Ky. 206 , 58 S.W.2d 396, 1933 Ky. LEXIS 211 ( Ky. 1933 ).

7. — Partition Sale.

Unnecessary direction in judgment for appraisal of indivisible land before sale thereof and partition of proceeds pursuant to former KRS 389.020 did not affect purchaser’s title, especially as sale was for more than two thirds of appraisement. Green v. Thomson, 168 Ky. 40 , 181 S.W. 662, 1916 Ky. LEXIS 505 ( Ky. 1916 ).

8. — Resale.

Reappraisement before resale after default upon sale bond given by purchaser at judicial sale was unnecessary, appraisement before first sale was sufficient. Wigginton v. Nehan, 76 S.W. 196, 25 Ky. L. Rptr. 617 , 1903 Ky. LEXIS 524 (Ky. Ct. App. 1903).

9. — Encumbered Land.

Where real estate is sold to enforce a junior lien, the thing that is sold is the debtor’s equity in the reality, subject to the prior lien, the property must be appraised as a whole, and the purchaser, in order to cut off the debtor’s right of redemption and obtain a deed, must bid at least two thirds (2/3) of the value of the debtor’s equity as computed by deducting the amount of the prior lien from the total appraised value. Hardwick v. Fitzpatrick, 279 Ky. 53 , 129 S.W.2d 1006, 1939 Ky. LEXIS 232 ( Ky. 1939 ).

10. — Mistake by Appraisers.

Sale of land should not be vacated on ground that appraisers undervalued it and thus induced sale at sacrifice price and deprived debtor of right to redeem, where appraisers made valuation fairly, notwithstanding evidence predominated that land was worth more than their appraisal and was sold for less than two thirds (2/3) of real value. Lawrence v. Edelen, 69 Ky. 55 , 1869 Ky. LEXIS 99 ( Ky. 1869 ) (decided under prior law).

Error of appraisers in valuing fee simple instead of life estate of debtor did not invalidate sale, valuation being for benefit of debtor may be waived by him, and if so, purchaser cannot avoid purchase. Anderson v. Briscoe, 75 Ky. 344 , 1876 Ky. LEXIS 92 ( Ky. 1876 ) (decided under prior law).

Mere erroneous opinion of appraisers as to value of land would not authorize setting aside of sale, where appraisers were not actuated by fraud or made mistake in fixing valuation other than one arising merely from erroneous opinion as to value. Harris v. Gunnell, 9 S.W. 376, 10 Ky. L. Rptr. 419 (1888) (decided under prior law).

A sale will not be set aside for a mere erroneous opinion of the appraisers where there was no fraud or other mistake in valuation. Kidd v. Stephens, 174 Ky. 381 , 192 S.W. 44, 1917 Ky. LEXIS 181 ( Ky. 1917 ). See Southwood v. Willis, 222 Ky. 782 , 2 S.W.2d 660, 1928 Ky. LEXIS 256 ( Ky. 1928 ).

Sale was not set aside on ground that appraisers valued land at $3,000, whereas it was worth only $2,000, where purchaser had nothing to do with appraisement and rights of defendant were not shown to have been prejudiced. Combs v. Salyer, 291 Ky. 592 , 165 S.W.2d 40, 1942 Ky. LEXIS 273 ( Ky. 1942 ).

11. — Reports Filed Late.

Where appraisals of the subject property made before a sale under former KRS 389.040 were known and available to all parties, the fact that the appraisal reports were not filed until after the sale did not make the sale invalid. Call v. Call, 367 S.W.2d 274, 1963 Ky. LEXIS 22 ( Ky. 1963 ).

12. — Sufficiency of Appraisal.

In a judicial sale, where trial court did not hold evidentiary hearing concerning the sufficiency of the appraisal of the value of the property, the court erred in confirming the report of sale after the exceptions had been filed. Burchett v. Bank Josephine, 474 S.W.2d 66, 1971 Ky. LEXIS 81 ( Ky. 1971 ).

13. — Appraisers Invalidly Sworn.

Judicial sale of land was set aside on ground that there had been no valid, sworn appraisement, where appraisers were sworn by commissioner who was unauthorized to do so because he had not qualified. Phelps v. Jones, 91 Ky. 244 , 15 S.W. 668, 12 Ky. L. Rptr. 818 , 1891 Ky. LEXIS 43 ( Ky. 1891 ) (decided under prior law).

14. — Indivisible Land.

Appraisement was unnecessary before sale of indivisible land at instance of devisees thereof. Eggen v. Huston, 13 S.W. 919, 12 Ky. L. Rptr. 158 (1890) (decided under prior law).

15. — Sale for Decedent’s Debts.

Sale of land to pay decedent’s debts with prior appraisement although consented to by all parties will be set aside at instance of creditors even when the heirs acquiesce. Cantrill v. Perry's Adm'r, 13 Ky. Op. 807, 7 Ky. L. Rptr. 446 , 1885 Ky. LEXIS 367 (Ky. Ct. App. Dec. 8, 1885) (decided under prior law).

Cited:

Vivion’s Adm’r v. Vivion, 50 S.W. 984, 21 Ky. L. Rptr. 102 (1899); Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ); Federal Land Bank of Louisville v. Crombie, 258 Ky. 383 , 80 S.W.2d 39, 1935 Ky. LEXIS 173 ( Ky. 1935 ); Andrew v. Brim, 272 S.W.2d 668, 1954 Ky. LEXIS 1124 ( Ky. 1954 ); Pearman v. West Point Nat’l Bank, 887 S.W.2d 366, 1994 Ky. App. LEXIS 135 (Ky. Ct. App. 1994).

Opinions of Attorney General.

In a divorce action, regardless of whether the land ordered sold is “restoration of property” to a spouse or is a division of property between the spouses, no appraisement under this section is necessary. OAG 76-609 .

A sheriff is not personally or officially responsible for court costs, including the expense of advertising and appraisers’ fees in connection with a judicial sale of property in which he participates at the direction of the court; such items are a part of the costs, subject to the directions of the court as to who has to pay them. OAG 84-123 .

The phrase “intelligent housekeeper of the county” as used in subsection (1) of this section requires a subjective evaluation of an appraiser’s qualifications rather than a strict application of rules of domicile. OAG 96-31 .

The legislature did not intend the phrase “intelligent housekeepers of the county” contained in subsection (1) of this section to carry a precise, objective meaning. The statutory language is intended to provide subjective guidance to the master commissioner in selecting persons to serve as appraisers. If the master commissioner believes that a person’s general aptitude and knowledge of the county, whether derived through business activities, real estate management, or actual residency, qualifies the person to appraise real property, then the person is an “intelligent housekeeper of the county” within the meaning of the statute. OAG 96-31 .

Research References and Practice Aids

Cross-References.

Sale of land under execution, KRS 426.200 .

Kentucky Bench & Bar.

Kentucky Bench & Bar. Herrick, Beware! Did your Client Recently Buy Land at a Tax Sale?, Vol. 60, No. 2, Spring 1996, Ky. Bench & Bar 14.

Kentucky Law Journal.

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appraisal, Form 257.11.

Caldwell’s Kentucky Form Book, 5th Ed., Judgment and Order of Sale, Plaintiff is First Lien Holder, Form 301.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.522. Public, judicial sale of real or personal property — When conducted by licensed auctioneer.

  1. If real or personal property is sold at public sale under any order or decree of any court in this state then, upon the request of a creditor or mortgage holder, the court under whose jurisdiction the sale is to be made may secure the services of an auctioneer licensed in this state to conduct the public sale, fix the auctioneer’s fee, and order the fee to be paid out of the proceeds of the sale. The fee:
    1. Shall not exceed six percent (6%) of the sale price on sales of real property;
    2. Shall not exceed twenty percent (20%) of the sale price on sales of personal property; and
    3. Shall not include the fees and expenses provided for by rule of the Supreme Court under KRS 31A.010(4) that are incurred by the master commissioner for the sale.
  2. Upon the request of the creditor or mortgage holder, when property is ordered to be sold by a court the master commissioner, as described in KRS Chapter 31A, shall employ a licensed auctioneer to handle the sale upon terms and conditions acceptable to the creditor or mortgage holder.
  3. If real property is sold at a public sale conducted by a licensed auctioneer, then the sale shall be conducted on the site of real property to be sold.
  4. If the master commissioner is also a licensed auctioneer, then the master commissioner shall not receive any extra fee for acting as an auctioneer, but shall receive fees in his or her capacity as master commissioner or special commissioner under KRS 31A.010(4).
  5. Nothing contained in this section shall waive any provision of KRS 426.160 , 426.200 , or 426.560 .

History. Enact. Acts 2011, ch. 36, § 1, effective June 8, 2011.

426.525. Mortgage foreclosure forbidden — Rights of mortgagee after default.

Foreclosure of a mortgage is forbidden; provided, however, that this section shall not preclude a mortgagee after default from taking possession of property subject to the mortgage which has been abandoned by the mortgagor, for the purpose of preserving and maintaining the same, harvesting crops, or letting the same, all to the account of the mortgagor; and any reasonable expenses incident thereto including taxes and insurance shall be added to the principal of the mortgage, and secured by it. For the purpose of this section, property shall be deemed to have been abandoned when the mortgagor has moved from the property and when by the nature of the property in question when further neglect or failure to attend will decrease its value. Any right a mortgagee acquires in a tenant’s interest in crops raised on shares is inferior to any prior existing lien of the landlord on the tenant’s interest. Nothing in this section shall be construed as conflicting with the provisions of KRS 383.110 or 426.205 .

History. C.C. 375: trans. Acts 1952, ch. 84, § 1; amend. Acts 1972, ch. 90, § 1; 2012, ch. 93, § 2, effective July 12, 2012.

NOTES TO DECISIONS

1. Foreclosure.

In this state a judgment foreclosing a mortgage, as commonly expressed, does not divest title or confer possession. Springfield F. & M. Ins. Co. v. Phillips, 16 Ky. L. Rptr. 352 , 16 Ky. L. Rptr. 390 .

The term “foreclosure” is generally and uniformly understood in modern times as a proceeding whereby a lien is enforced and property is sold through a proceeding in court to satisfy a debt. Hence, where policy of insurance provided that the policy shall be void, if foreclosure proceedings are commenced against the property, the court erred in sustaining demurrer to answer of insurance company asserting such proceeding as a defense against recovery on the policy. Insurance Co. of North America v. Cheathem, 221 Ky. 668 , 299 S.W. 545, 1927 Ky. LEXIS 787 ( Ky. 1927 ), overruled, Hartford Fire Ins. Co. v. Bryan, 244 Ky. 61 , 50 S.W.2d 74, 1932 Ky. LEXIS 391 (1932), overruled in part, Hartford Fire Ins. Co. v. Bryan, 244 Ky. 61 , 50 S.W.2d 74, 1932 Ky. LEXIS 391 (1932). See Springfield Fire & Marine Ins. Co. v. Blevins, 234 Ky. 183 , 27 S.W.2d 699, 1930 Ky. LEXIS 139 ( Ky. 1930 ); Rhode Island Ins. Co. v. Wurtman, 265 Ky. 835 , 98 S.W.2d 29, 1936 Ky. LEXIS 587 ( Ky. 1936 ).

2. — Power of Sale.

Sale of a mortgaged chattel by the mortgagee under a power of sale, is a mere enforcing of the lien of the mortgagee, and does not violate this section, which forbids the foreclosure of a mortgage, whereby the mortgagor’s right of redemption of the mortgaged premises was barred as forever, and the title forfeited without a sale. Montenegro-Riehm Music Co. v. Beuris, 160 Ky. 557 , 169 S.W. 986, 1914 Ky. LEXIS 488 ( Ky. 1914 ) ( Ky. 1914 ).

3. — Sale to Enforce Lien.

A usual and ordinary judgment for the sale of property to enforce a lien against it, in strict conformity with the prevailing rules of practice for such purpose, is not forbidden by this section. Oglesby v. Prudential Ins. Co., 259 Ky. 620 , 82 S.W.2d 824, 1935 Ky. LEXIS 358 ( Ky. 1935 ).

4. — Repossession of Chattel.

In an action under the claim and delivery statute to recover possession of an automobile mortgaged by the defendant to the plaintiff, where the only relief sought was the possession of the mortgaged property by the plaintiff who had a special interest in it, the action was deemed not an attempt to foreclose the lien by common-law foreclosure proceedings as prohibited by this section. Farmers & Depositors Bank v. Taylor, 290 Ky. 774 , 162 S.W.2d 764, 1942 Ky. LEXIS 489 ( Ky. 1942 ).

5. — Violation by Mortgagor.

A mortgagee who forecloses a mortgage pursuant to a stipulation in the mortgage in violation of this section must account to the mortgagor for the actual instead of the selling value of the property. Aultman & Taylor Co. v. Meade, 121 Ky. 241 , 89 S.W. 137, 28 Ky. L. Rptr. 208 , 1905 Ky. LEXIS 193 ( Ky. 1905 ).

6. — Consent of Mortgagee.

Where a mortgagor permits his mortgagee to sell the mortgaged property illegally, and later helps the purchaser to remove the property, mortgagor is not estopped to context the validity of the sale as against the mortgagee. Aultman & Taylor Co. v. Meade, 121 Ky. 241 , 89 S.W. 137, 28 Ky. L. Rptr. 208 , 1905 Ky. LEXIS 193 ( Ky. 1905 ).

7. Abandonment.

It is a question for the finder-of-fact to determine whether there is indeed a default in the contract and an “abandonment” of the property, such as that term is defined in this section. Akers v. Cook, 707 S.W.2d 355, 1986 Ky. App. LEXIS 1103 (Ky. Ct. App. 1986).

Cited:

Sebastian v. Floyd, 585 S.W.2d 381, 1979 Ky. LEXIS 271 ( Ky. 1979 ); Alexander v. Springfield Production Credit Asso., 673 S.W.2d 741, 1984 Ky. App. LEXIS 607 (Ky. Ct. App. 1984).

Research References and Practice Aids

Kentucky Bench & Bar.

Carter, Forging Foreclosure Fairness for Communities, Vol. 76, No. 6, November 2012, Ky. Bench & Bar 15.

Kentucky Law Journal.

Glenn, Foreclosure Receiverships in Kentucky, 25 Ky. L.J. 26 (1936).

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

Northern Kentucky Law Review.

2010 General Law Issue: Note: We Don’t Live Here Anymore: A Critical Analysis of Government Responses to the Foreclosure Crisis, 37 N. Ky. L. Rev. 121 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

426.530. Right of redemption — Manner of redeeming — Purchaser to receive writ of possession and deed.

  1. If real property sold in pursuance of a judgment or order of a court, other than an execution, does not bring two-thirds (2/3) of its appraised value, the defendant and his or her representatives may redeem it within six (6) months from the day of sale, by paying the original purchase money and ten percent (10%) per annum interest thereon, and any reasonable costs incurred by the purchaser after the sale for maintenance or repair of the property, including but not limited to utility expenses, insurance, association fees, taxes, and the costs to conform the property to the minimum standards oflocal nuisance code provisions and other local ordinances as authorized in KRS 65.8801 to 65.8839 .
  2. The defendant shall pay the redemption money to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon payment by the defendant, the master commissioner shall convey the real property to the defendant.
  3. When the right of redemption exists, the purchaser shall receive an immediate writ of possession and a deed containing a lien in favor of the defendant, reflecting the defendant’s right to redeem during the statutory period.

History. 2364: amend. Acts 1982, ch. 216, § 1, effective July 15, 1982; 2014, ch. 107, § 1, effective July 15, 2014; 2016 ch. 86, § 16, effective July 15, 2016.

NOTES TO DECISIONS

Cited:

1. Application.

This section applies only to sales of land for debt and has no application to sales of lands of infants made by a judgment of the guardian and does not apply to sales made solely for partition of the proceeds among the heirs or devisees. Vivion's Adm'r v. Vivion, 50 S.W. 984, 21 Ky. L. Rptr. 102 (1899).

KRS 426.520 and this section do not apply to sales of land for indivisibility. Maynard v. Boggs, 735 S.W.2d 342, 1987 Ky. App. LEXIS 543 (Ky. Ct. App. 1987).

In a buyer’s suit alleging breach of an installment land contract, it was error for a trial court to dismiss the suit, thereby forfeiting the buyer’s interest in the subject land, because the buyer had (1) an equitable ownership interest in the land to the extent of the monthly payments the buyer had made on the land, and (2) redemption rights in the land under KRS 426.530 , so the only judicial remedy was a judicial sale of the land. Slone v. Calhoun, 386 S.W.3d 745, 2012 Ky. App. LEXIS 245 (Ky. Ct. App. 2012).

2. — “Defendant” Defined.

The meaning of the term “defendant” in this section refers to the owner of the property; junior mortgagees or lienholders are not included in the class of those entitled to redeem under this section. Kirklevington Assoc., Ltd. v. Kirklevington North Assoc., Ltd., 848 S.W.2d 453, 1993 Ky. App. LEXIS 35 (Ky. Ct. App. 1993).

3. Redemption.

Debtor cannot waive failure to have property appraised to injury of creditors, since right of redemption is a property right which can be sold under execution. Cantrill v. Perry's Adm'r, 13 Ky. Op. 807, 7 Ky. L. Rptr. 446 , 1885 Ky. LEXIS 367 (Ky. Ct. App. Dec. 8, 1885) (decided under prior law).

Law providing for the redemption of land sold under decree, applies to sales made under judgments rendered in actions brought to sell land to pay debts of a decedent, and the fact that the parties consent to the judgment does not deprive it of its coercive character. Cantrill v. Perry's Adm'r, 13 Ky. Op. 807, 7 Ky. L. Rptr. 446 , 1885 Ky. LEXIS 367 (Ky. Ct. App. Dec. 8, 1885) (decided under prior law).

State law conferring right of redemption after decree of foreclosure or execution sale is obligatory upon federal courts in equity as to lands within the state. Columbia Finance & T. Co. v. Kentucky Union R. Co., 60 F. 794, 1894 U.S. App. LEXIS 2140 (6th Cir. Ky. 1894 ).

If bidder bid in land at judicial sale under agreement preserving owner’s right to redeem, owner would not be deprived of that right although bidder’s son was reported as purchaser. Crane v. Arnold, 57 S.W. 11, 22 Ky. L. Rptr. 273 , 1900 Ky. LEXIS 614 (Ky. Ct. App. 1900).

Redemption of land from judicial sale should be permitted, where person, acting for heirs of deceased debtor, timely offered proper amount to purchaser, and upon its rejection paid amount into court, notwithstanding offerer did not disclose that he was acting for heirs. Clemons' Adm'x v. Combs, 89 S.W. 113, 28 Ky. L. Rptr. 188 (1905).

In view of subsection (1) of KRS 392.040 and this section, widow of execution debtor, being within term “representatives,” had right timely to redeem mortgaged land, as against purchaser at judicial sale, to claim her dower, notwithstanding she had joined in mortgage, where land was sold for less than two-thirds of appraisal. Hiller v. Nelson, 118 S.W. 292, 1909 Ky. LEXIS 490 (Ky. Ct. App. 1909).

Purchaser of land which had been sold under judgment was entitled to redeem upon motion, notwithstanding he had never formally been made party to action, since statute contemplated informal and summary redemption by payment or tender, even if sale has been confirmed. Miller v. Wheeler, 147 Ky. 131 , 143 S.W. 1028, 1912 Ky. LEXIS 213 ( Ky. 1912 ).

After sale under judgment enforcing street assessment lien, former owner’s right to redeem would be under this section, and not under law governing redemption from tax sales. Messer v. American Eagle Fire Ins. Co., 227 Ky. 3 , 12 S.W.2d 358, 1928 Ky. LEXIS 498 ( Ky. 1928 ).

An equity of redemption, or legal right to redeem, is that right which the property owner has to regain complete title to his property by paying the purchaser the amount for which the property was sold, with interest and penalties. Messer v. American Eagle Fire Ins. Co., 227 Ky. 3 , 12 S.W.2d 358, 1928 Ky. LEXIS 498 ( Ky. 1928 ).

The law favors the right of redemption. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

The purpose of an appraisal of the value of the property in a foreclosure proceeding relates primarily to the right of redemption and not to the validity of sale. Burchett v. Bank Josephine, 474 S.W.2d 66, 1971 Ky. LEXIS 81 ( Ky. 1971 ).

The purpose of an appraisal of the value of the property in a foreclosure proceeding relates primarily to the right of redemption and not to the validity of sale. Burchett v. Bank Josephine, 474 S.W.2d 66, 1971 Ky. LEXIS 81 ( Ky. 1971 ).

Only those who possess an interest in the property at the time of its sale acquire a right of redemption under subsection (1) of this section. United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff'd in part and rev'd in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. Ky. 1989 ).

This section creates an exclusive right of redemption in favor of the owner of the property. Kirklevington Assoc., Ltd. v. Kirklevington North Assoc., Ltd., 848 S.W.2d 453, 1993 Ky. App. LEXIS 35 (Ky. Ct. App. 1993).

A debtor can transfer the statutory right of redemption to another. Town Branch Storage, Inc. v. Commonwealth, 995 S.W.2d 398, 1999 Ky. App. LEXIS 63 (Ky. Ct. App. 1999).

4. — Sale Price.

Where assignors’ land was sold by their assignee, pursuant to judgment against them to pay debts, assignors would have right to redeem if price obtained was less than two-thirds of appraised value. Graves v. Long, 87 Ky. 441 , 9 S.W. 297, 10 Ky. L. Rptr. 414 , 1888 Ky. LEXIS 92 ( Ky. 1888 ) (decided under prior law).

There is no right of redemption where the sale price of the property was in excess of two-thirds of its appraised value. In re Clore, 11 F. Supp. 465, 1935 U.S. Dist. LEXIS 1616 (D. Ky. 1935 ), aff'd, 90 F.2d 1004, 1937 U.S. App. LEXIS 4027 (6th Cir. Ky. 1937 ).

Heirs of decedent, whose land was sold to pay debts, did not have right to redeem, where evidence predominated that land was appraised for $200 subject to widow’s homestead and was purchased by her for that sum. Smith v. Boone, 222 Ky. 1 , 299 S.W. 1059, 1927 Ky. LEXIS 846 ( Ky. 1 927).

Right of redemption did not exist in owner or his creditors or anyone claiming under him, where mortgagee’s bid for mortgaged land was over two-thirds of appraised value. Sandy Hook Bank's Trustee v. Boggs, 267 Ky. 525 , 102 S.W.2d 969, 1937 Ky. LEXIS 339 ( Ky. 1937 ).

Where real estate was sold at judicial sale for more than appraised value, there was no right of redemption, and alleged oral redemption agreement came within statute of frauds. Brown v. Thomas, 306 Ky. 706 , 208 S.W.2d 723, 1948 Ky. LEXIS 604 ( Ky. 1948 ).

Purchaser, in order to have been given credit for liens paid, should have filed exceptions to the sale’s confirmation either before its confirmation or during the term of the court at which the order of confirmation was made, and while control of the sale proceeds of the sale bond remained in the hands of the court; by failing to do so in this case, purchaser waived his right to argue that these extra amounts paid should have been added to the bid price. Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7 (Ky. Ct. App. 1990), overruled, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 1994 Ky. LEXIS 35 ( Ky. 1994 ).

5. — Affidavit.

Owner was entitled to redeem, where, on seeking to redeem, he did not find purchaser at home and made affidavit that he was not in county, gave check to clerk and obtained receipt stated to be in full. Hatcher v. Hackney, 110 S.W. 888, 33 Ky. L. Rptr. 661 (1908).

This section does not require that the affidavit of tender and refusal be made before the clerk of the court, and it may be made before any officer authorized to administer oaths. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

6. — Right to Possession.

If purchaser at judicial sale took possession before expiration of right to redeem, he would be liable to owner for rents. Costigan v. Truesdell, 119 Ky. 70 , 83 S.W. 98, 26 Ky. L. Rptr. 971 , 1904 Ky. LEXIS 147 ( Ky. 1904 ).

Purchaser was not entitled to conveyance or possession until right of redemption expired, where land was sold for less than two-thirds of appraisement. Schlenker v. Clark, 226 Ky. 665 , 11 S.W.2d 725, 1928 Ky. LEXIS 157 ( Ky. 1928 ).

Contract by which successful bidders at judicial sale for less than two-thirds of appraisement transferred their rights to assignee, was not vitiated by failure of consideration, although statutory provisions precluded award of possession to assignee during period of right of redemption. Johnson v. Baker, 246 Ky. 604 , 55 S.W.2d 404, 1932 Ky. LEXIS 808 ( Ky. 1932 ).

7. — Conveyance to Purchaser.

When property is sold for less than two-thirds of appraisement under judgment to pay debts, title does not pass to purchaser until year allowed for redemption has expired. Messer v. American Eagle Fire Ins. Co., 227 Ky. 3 , 12 S.W.2d 358, 1928 Ky. LEXIS 498 ( Ky. 1928 ). See R. T. Elswick & Co. v. Scott, 225 Ky. 3 09 , 8 S.W.2d 398, 1928 Ky. LEXIS 766 ( Ky. 1928 ).

8. — Separate Parcels.

Where debtors, owning separate tracts, owed single creditor, with right of contribution between debtors, and both tracts, with right to redeem were sold for stated sum, owner of each tract could redeem his land within year by paying the purchase price of his own land with statutory interest. Miller v. Wheeler, 147 Ky. 131 , 143 S.W. 1028, 1912 Ky. LEXIS 213 ( Ky. 1912 ).

Where more than one (1) parcel is sold at the same sale, the defendant or his representatives may redeem one (1) or more parcels without redeeming the rest. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

Where several parcels were illegally appraised in the aggregate, the right of redemption would exist even though one parcel brought more than two-thirds (2/3) of its value, and in the absence of proof to the contrary, where total bids for entire property were less than two-thirds (2/3) of aggregate appraisal, court could assume that each parcel brought less than two-thirds (2/3) of its value. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

9. — Time Allowed.

Redemption after lapse of year should be allowed, where one heir bought ancestor’s land at judicial sale under tacit agreement that purchase was for other heirs, and thereafter baffled their efforts to pay their share towards redemption, thus preventing redemption with year. Farris v. Farris, 29 S.W. 618, 16 Ky. L. Rptr. 729 (1895).

Owner whose land was sold under judgment had right to redeem, where he timely sought to redeem, but mistakenly failed to deposit, by $9.00, amount due purchaser. Moore v. Bishop, 49 S.W. 957, 20 Ky. L. Rptr. 1622 , 1899 Ky. LEXIS 454 (Ky. Ct. App. 1899).

Where the equity of redemption is sold the debtor has the right to redeem against the purchaser of the equity until the end of the year from the first sale. Pinson v. Williams, 288 Ky. 314 , 155 S.W.2d 869, 1941 Ky. LEXIS 85 ( Ky. 1941 ).

Statutory redemption period did not expire during the pendency of appeal; former owner complied with the statute and CR 60.02 by filing a motion asking the court to rule that the redemption period be stayed during the pendency of this appeal. There was no authority to support contention that former owner was required to file a supersedeas bond pursuant to CR 73.04; this was not a situation in which a supersedeas bond is required since there had been no monetary relief from which former owner had appealed. Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7 (Ky. Ct. App. 1990), overruled, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 1994 Ky. LEXIS 35 ( Ky. 1994 ).

Where the applicable facts showed that the sale occurred on October 22, 1984, and former owner filed a motion for setting the redemption price on May 14, 1985, this clearly fell within the one-year statutory period; the fact that the deputy commissioner’s report was not issued until January 8, 1987, did not thwart former owner’s redemption right. Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7 (Ky. Ct. App. 1990), overruled, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 1994 Ky. LEXIS 35 ( Ky. 1994 ).

10. — Railroad Property.

Where mortgaged franchise and real and personal property of railroad were sold at foreclosure, they should be deemed an entity which was not real estate within this section which allows one year for redemption when property does not bring two-thirds of its appraised value. Columbia Finance & T. Co. v. Kentucky Union R. Co., 60 F. 794, 1894 U.S. App. LEXIS 2140 (6th Cir. Ky. 1894 ).

11. — Partnership Property.

In a sale of partnership property there is a right to redeem if the sale was a coercive sale to pay debts, but there is no right of redemption where the sale was primarily to sell indivisible property and for settlement of the partnership. McCool v. O'Brien, 289 Ky. 729 , 160 S.W.2d 28, 1942 Ky. LEXIS 632 ( Ky. 1942 ).

12. — Encumbered Land.

Where real estate is sold to enforce a junior lien, the thing that is sold is the debtor’s equity in the realty, subject to the prior lien, the property must be appraised as a whole, and the purchaser, in order to cut off the debtor’s right of redemption and obtain a deed, must bid at least two-thirds (2/3) of the value of the debtor’s equity as computed by deducting the amount of the prior lien from the total appraised value. Hardwick v. Fitzpatrick, 279 Ky. 53 , 129 S.W.2d 1006, 1939 Ky. LEXIS 232 ( Ky. 1939 ).

13. — Conveyance by Debtor.

Fraudulent grantee from former owner was not entitled to redeem land which had been sold for less than two-thirds (2/3) of appraisement, as against former owner’s pre-existing creditors who purchased equity of redemption, especially where fraudulent grantee did not offer to redeem both from sale and from purchasers of equity of redemption. Warden v. Troutman, 74 S.W. 1085, 25 Ky. L. Rptr. 247 (1903).

If former owner of land during year allowed for redemption conveyed land, the conveyance, if valid, authorized grantee to tender or deposit redemption money, but if conveyance was fraudulent, title remained in former owner. R. T. Elswick & Co. v. Scott, 225 Ky. 309 , 8 S.W.2d 398, 1928 Ky. LEXIS 766 ( Ky. 1928 ).

A defendant debtor who has conveyed his or her property to another prior to its judicial sale does not acquire a right of redemption under this section. United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff'd in part and rev'd in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. Ky. 1989 ).

If the transferee’s title was set aside as fraudulently conveyed, she could not assert an independent right of redemption, for her status at the time of the sale was neither that of an owner nor that of a grantee of an owner. United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff'd in part and rev'd in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. Ky. 1989 ).

Where a debtor’s land has been sold by judicial sale pursuant to this section, and after the sale but before the expiration of the year in which the debtor may redeem his or her property, the debtor conveys his or her interest in the land to another, the debtor’s grantee, as the debtor’s representative under this section, has the right to prosecute an appeal from an order denying him or her the right to redeem the land. United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff'd in part and rev'd in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. Ky. 1989 ).

14. — Debtor’s Heirs.

Where widow of debtor redeemed land from judicial sale, debtor’s children, if they wish to enjoy benefit of redemption, must contribute pro rata share of money paid by widow. Hiller v. Nelson, 118 S.W. 292, 1909 Ky. LEXIS 490 (Ky. Ct. App. 1909).

An heir who was also a creditor of the estate would not be estopped from redeeming by her acceptance of her share, as a creditor, of the proceeds of the sale. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

Where land belonging to an estate is sold, one heir may redeem without joining the others, and a joinder, though not necessary, would be proper even if made after the expiration of the year. Crittenden v. Rogers, 278 Ky. 481 , 128 S.W.2d 942, 1939 Ky. LEXIS 450 ( Ky. 1939 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), over’d on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976).

15. — Amount Required.

Amount required to redeem is not to be reduced by an amount equal to the profit and rents purchaser of property realized during the period he possessed the property. Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7 (Ky. Ct. App. 1990), overruled, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 1994 Ky. LEXIS 35 ( Ky. 1994 ).

16. — Attempt to Defeat by Purchaser.

Purchaser of property at public sale was not allowed to add the amounts paid to extinguish the other claims against the property to the amount he bid, and thus defeat any redemption right that former owner might have. Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7 (Ky. Ct. App. 1990), overruled, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 1994 Ky. LEXIS 35 ( Ky. 1994 ).

17. — Agreement to Extend Time.

Where land was acquired by purchaser at judicial sale for about one third of its value under parol agreement giving owner additional time to redeem, and thereafter purchaser sold benefit of his purchase to third party, who also agreed to give owner additional time to redeem, the agreement, although parol, constituted a trust and permitted owner to redeem. Martin v. Martin, 55 Ky. 8 , 1855 Ky. LEXIS 22 ( Ky. 1855 ) (decided under prior law).

18. — Effect on Mortgage Lien.

Fact that statute declares sale shall be nullity in case of redemption does not reinvest mortgagee, who has sold land to satisfy mortgage, with mortgage lien, but redemption restores title to mortgagor without reviving lien. Makibben v. Arndt, 88 Ky. 180 , 10 S.W. 642, 10 Ky. L. Rptr. 847 , 1889 Ky. LEXIS 18 ( Ky. 1889 ) (decided under prior law).

19. — Sale for Defaulted Bond.

Purchaser at judicial sale, whether former owner of land or stranger, would have no right to redeem land after second sale to satisfy defaulted sale bond. McKee v. Stein's Guardian, 91 Ky. 240 , 16 S.W. 583, 13 Ky. L. Rptr. 49 , 1891 Ky. LEXIS 99 ( Ky. 1891 ) (decided under prior law).

20. — Bankruptcy.

Chapter 7 debtor's right of redemption, which arose at postpetition foreclosure sale of estate property in which estate had not abandoned its interest, was property of estate because right of redemption was proceed of auctioned estate property. Schlarman v. Nageleisen (In re Nageleisen), 527 B.R. 258, 2015 Bankr. LEXIS 702 (Bankr. E.D. Ky. 2015 ).

Cited:

Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ); Pinson v. Bentley, 298 Ky. 396 , 182 S.W.2d 974, 1944 Ky. LEXIS 912 (1944); Deaton v. Bowling, 302 Ky. 829 , 196 S.W.2d 603, 1946 Ky. LEXIS 762 ( Ky. 1946 ); Buskirk v. Joseph, 313 Ky. 773 , 233 S.W.2d 524, 1950 Ky. LEXIS 978 ( Ky. 1950 ); North Star Co. v. Howard, 341 S.W.2d 251, 1960 Ky. LEXIS 74 ( Ky. 1960 ); Bailey v. Ashland Discount Asso., 400 S.W.2d 508, 1966 Ky. LEXIS 434 ( Ky. 1966 ); Kentucky Farm Bureau Mut. Ins. Co. v. Conley, 498 S.W.2d 122, 1973 Ky. LEXIS 284 ( Ky. 1973 ); Pearman v. West Point Nat’l Bank, 887 S.W.2d 366, 1994 Ky. App. LEXIS 135 (Ky. Ct. App. 1994).

Research References and Practice Aids

Cross-References.

Possession by mortgagee for 15 years bars right of redemption, KRS 413.070 .

Kentucky Bench & Bar.

Kentucky Bench & Bar. Herrick, Beware! Did your Client Recently Buy Land at a Tax Sale?, Vol. 60, No. 2, Spring 1996, Ky. Bench & Bar 14.

Kentucky Law Journal.

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Confirming Sale, Form 301.10.

426.540. Redemption right may be sold — Rights of purchaser and debtor — Report of sale.

If the proceeds of sale fail to satisfy the judgment, the right of redemption provided for in KRS 426.530 may be sold to satisfy the residue of the judgment. The right of redemption shall also be liable to sale under execution. The land shall be subject to redemption from both purchasers for one (1) year from the first sale. The purchaser of the right of redemption may, before the end of a year from the first sale, pay the prior purchaser his purchase money and interest as provided in KRS 426.530 , and shall then be entitled to the land, subject to the rights of possession and redemption held by the defendant in the execution. A sale made in pursuance of any such judgment or order shall be reported to the court by the commissioner or officer who made the sale, and the report shall state at what sum the property sold was appraised. If the report is not excepted to, the sale may be confirmed, but if the land is redeemed the confirmation shall thereafter be null and void.

History. 2365.

NOTES TO DECISIONS

1. Sale of Redemption Right.

Where realty is sold for less than two-thirds (2/3) of appraisement and less than judgment debt, the debtor, before execution is issued for balance due on judgment, can create a lien on the equity of redemption, or before order is made directing its sale, may sell his equity of redemption, and thus defeat right of judgment creditor to subject equity of redemption to balance due on mortgage debt. Rogers v. Beam's Ex'r, 169 Ky. 239 , 183 S.W. 930, 1916 Ky. LEXIS 698 ( Ky. 1916 ).

2. — Time Allowed to Redeem.

Failure to execute order of sale of equity of redemption would not prevent termination of right to redeem after lapse of year. Costigan v. Truesdell, 119 Ky. 70 , 83 S.W. 98, 26 Ky. L. Rptr. 971 , 1904 Ky. LEXIS 147 ( Ky. 1904 ).

When both the land and the equity of redemption have been sold, the debtor may redeem from both the purchaser of the land and the purchaser of the equity within one year from the first sale. Pinson v. Williams, 288 Ky. 314 , 155 S.W.2d 869, 1941 Ky. LEXIS 85 ( Ky. 1941 ).

3. — Delay in Sale.

When the land has been sold and the equity of redemption levied on, delay in sale of the equity does not amount to waiver or abandonment of the execution lien except insofar as intervening rights of third parties were concerned. Pinson v. Williams, 288 Ky. 314 , 155 S.W.2d 869, 1941 Ky. LEXIS 85 ( Ky. 1941 ).

4. Junior Lienholders.

Junior lienholders were not allowed to execute upon the mortgagor’s right of redemption where the notes it held were nonrecourse notes, limiting the funds available to satisfy its lien to the amount obtained at foreclosure. Kirklevington Assoc., Ltd. v. Kirklevington North Assoc., Ltd., 848 S.W.2d 453, 1993 Ky. App. LEXIS 35 (Ky. Ct. App. 1993).

Cited:

United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ), aff’d in part, rev’d in part, 877 F.2d 453, 1989 U.S. App. LEXIS 7959 (6th Cir. 1989).

426.550. Death of party after sale under court order— Revivor not necessary.

If, by the judgment of any court of this state, real property is sold and any party to the action dies after the sale is confirmed, or, if the court orders any conveyance of real property by a commissioner and a party to the proceedings dies before the conveyance is perfected, it shall not be necessary on that account to revive the action, but the sale or conveyance when perfected shall pass title to the same extent as if all the parties were living.

History. 521.

NOTES TO DECISIONS

1. Revivor.

Deed was properly made after death of former owner to purchaser at judicial sale, where sale had been made, reported, and confirmed before owner’s death, and he died during period allowed for redemption. Johnson's Adm'r v. Haskins, 38 S.W. 687, 18 Ky. L. Rptr. 852 (1897).

In view of this section it was unnecessary in action in equity to enforce execution lien to revive action as against heirs of one of execution defendants who died after sale under decree but before commissioner’s deed was made. Garrison v. Clark, 151 Ky. 565 , 152 S.W. 581, 1913 Ky. LEXIS 536 ( Ky. 1913 ).

Revivor of action to enforce lien on land was unnecessary as against heirs of person who became entitled to land purchased at judicial sale, where that person died after confirmation of sale but before deed was made by commissioner. Likens v. Pate, 160 Ky. 319 , 169 S.W. 734, 1914 Ky. LEXIS 446 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

Deed or patent to dead person, title inures to his heirs, KRS 382.060 .

426.551. Issual of execution after death of plaintiff— Who treated as plaintiff.

  1. The death of a party, after recovering a judgment, shall not prevent the issuing of an execution afterward; but
    1. Upon a judgment recovered by one (1) party, execution issued after his death must be in favor of his representative or successor who is entitled to the property for which the judgment was rendered.
    2. Upon a judgment recovered by several parties, execution issued after the death of one must be in favor of the other.
    3. Upon a judgment recovered by several parties, execution issued after the death of all of them must be in favor of the last survivor’s representative or successor who would have been entitled to the property if the judgment had been recovered by such survivor only.
    4. The clerk shall indorse on the execution the names of the decedent and of such survivor, representative or successor.
    5. An execution issued in favor of a survivor, representative or successor of a decedent shall be subject to the control of the court whence it issued for the protection of any person interested therein.
  2. Upon such execution, the person entitled thereto, according to the indorsement of the clerk, shall be treated by the sheriff as the plaintiff therein.

History. C.C. 402, 403: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1. Death of Plaintiff.

Death of the plaintiff in the execution does not actually abate either the judgment or the execution, but merely suspends their operation until an administrator be appointed and the clerk rendered able to indorse his name upon the execution. Morgan v. Winn's Adm'r, 56 Ky. 233 , 1856 Ky. LEXIS 26 ( Ky. 1856 ) (decided under prior law).

If execution be levied and the plaintiff dies before a sale of the property, and in a reasonable time there is a personal representative qualified, the lien created by the levy is not lost, nor is any scire facias necessary to authorize the issue of a venitioni exponas, or other execution on the judgment. Morgan v. Winn's Adm'r, 56 Ky. 233 , 1856 Ky. LEXIS 26 ( Ky. 1856 ) (decided under prior law).

Death of the plaintiff does not actually abate either the judgment or the execution, but it suspends all further proceedings on the execution until administration be granted and the clerk be authorized to make the proper indorsements thereon, as provided by law, so that the defendant may have the benefit of a sale on credit, or his right to replevy the debt. Venable v. Smith's Ex'r, 62 Ky. 195 , 1864 Ky. LEXIS 23 ( Ky. 1864 ) (decided under prior law).

Provisions of this section apply only to the enforcement of judgments for the direct benefit of the immediate estate of the deceased or his devisees. Fordson Coal Co. v. Jackson, 2 F.2d 466, 1924 U.S. App. LEXIS 2082 (6th Cir. Ky. 1924 ).

2. — Indorsement of Execution.

No valid execution can issue upon a judgment after the death of the plaintiff unless it is indorsed by the clerk, and the issuance of an execution without such indorsement does not suspend the operation of the statute of limitations. Mulholland v. Troutman, 10 Ky. L. Rptr. 263 . See Williams v. Staton, 4 Ky. L. Rptr. 225 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit Required Showing Right of Claimant When Party Dies Subsequent to Judgment, Form 151.07.

426.552. Affidavit and other documents required before issuance of execution — When bond required.

The clerk, before making the indorsements required by paragraph (d) of subsection (1) of KRS 426.551 , shall require the person claiming right thereto to file an affidavit showing his right. If the affiant state that he is a personal representative or successor of a decedent, the clerk shall also require him to file a copy, properly certified, of his appointment as such by a competent tribunal in the United States; and, unless the appointment was made in Kentucky, the clerk shall also require of him a covenant, with good surety, that he will dispose, according to law, of any property which he may receive upon the execution. If the affiant state that he is a devisee of a decedent, the clerk shall require him to file a copy of the will, certified by a county clerk in this state in which the will or a copy is recorded.

History. C.C. 404: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1978, ch. 384, § 528, effective June 17, 1978.

NOTES TO DECISIONS

1. Death of plaintiff.

Death of the plaintiff does not actually abate either the judgment or the execution, but it suspends all further proceedings on the execution until administration