Campbell v. Bartlett , 10 Ky. Op. 747 ( 1880 )

Opinion by

Judge Hines :

At the time the mortgage was executed to' secure the debt enforced, and at the time of the assignment of the debt to appellants, there was no record evidence of any lien by execution, nor of title by purchase under execution, nor was there any notice, actual or constructive, to appellants of any lien or encumbrance on the land. Appellants stand in the attitude of innocent purchasers for value, exactly as if the mortgage had been executed directly to them at the date of the assignment. An attempt to levy upon land situated in range 4, when the levy and return show a levy upon land in range 2, is no levy as against an innocent purchaser for value, and, therefore, the levy and return cannot be corrected to conform to the intention so as to affect an innocent purchaser. The fact that the payee in the note knew of the existence of the levy does not in any way affect the rights of appellants, any more than a secret agreement between the creditor and the mortgagor would affect them.

Having determined that the controversy on its merits is for appellants we need not consider whether the circuit court had the right to cause to be corrected a levy and return on execution issuing from the common pleas court.

Judgment reversed and cause remanded with directions for further proceedings consistent with this opinion.