Citation Numbers: 207 Ky. 157
Judges: Settle
Filed Date: 2/3/1925
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
This is an appeal from a judgment of the Casey circuit court granting the appellee a writ of .habere facias possessionem for a house and lot situated in the town of Liberty, Casey county, Kentucky, sold as the property of the appellants by the sheriff of that county under an execution issued from the office of the clerk of the Casey circuit court, at which sale the appellee became the purchaser of the property at a price in excess of two-thirds of its appraised value and, also, in excess of the execution debt and cost.
The execution was issued at the instance of A. D. Wesley upon a past due sale bond payable to him and having the force and effect of a judgment, which the appellants, with another as surety, had executed for the property in question, following its purchase by the appellant, Nannie Hale, at a commissioner’s sale made under a judgment of the Casey circuit court in an action brought by Wesley against the Hales to enforce a vendor’s lien on the property, the title to which was then held by the appellant, Nannie Hale,” to whom it had been conveyed, subject to the vendor’s lien, by her husband, the appellant A. L. Hale, after its sale and conveyance to him by Wesley.
The motion of the appellee and notice thereof to the appellants for the writ of habere facias possessionem were in writing substantially setting forth the sale of
The appellants filed a general demurrer and written response to the motion, the response controverting the statements of the motion and affirmatively attacking the validity of the execution and sale to the appellee of the nouse and lot thereunder. The appellee filed a reply to the response which traversed all of its affirmative averments and, in addition, pleaded as a ground of estoppel that his purchase of the house and lot at the execution sale was made at the request of the appellant, Nannie Hale. .
As the circuit court did not pass on the appellants’ demurrer to the appellee’s motion and was not asked by them to do so, the demurrer must be regarded as waived. There was, however, oral evidence introduced in that court by the parties on the issues made by the pleadings, after which the court rendered judgment sustaining the appellee’s motion and .granting him the writ of possession thereby prayed.
As the bill of exceptions containing the evidence heard in the court below, because of its not having been made a part of the record on the appeal by an order of that court, was by an order of this court entered at a former term, stricken from the record, such evidence cannot be considered by us in determining any question raised on the appeal. In such state of case our duty goes no further than to determine whether the judgment appealed from is supported by the pleadings as here formed. Clark v. Wallace Oil Co., 155 Ky. 836; Tyler v. Woerner, 158 Ky. 710; Gambrell v. Gambrell, 130 Ky. 714. And as to this question we are constrained to give an affirmative answer, the judgment is affirmed.