Cavanaugh v. Wilson. der which, on execution, the defendant's property was sold and bought by the plaintiff, the latter was entitled to possession. No question of title was involved, but, if it had been, still the correctness of the judgment of possession appealed from would probably have been upheld, because the judgment on which the execution issued, so far as that record disclosed at that time, was valid and unreversed. The case is not authority on the question of what rights Mrs. Cavanaugh may have on a record disclosing that the judgment under which her property was sold was valid, erroneous, and for that reason had been reversed and set aside. The case of Yocum v. Foreman, 14 Bush, 494, is also relied on to support the finding below. That case established the doctrine that, whether the purchaser at an execution sale be the plaintiff in the execution or a stranger, the title passes. This seems to be in accordance with the general rule, when not controlled by statute. But this doctrine leaves untouched the remedy of one whose property has been sold under a judgment subsequently reversed. If the defendant may not get his property as a matter of right, still the purchaser, if he has procured the sale, must, under all authority, account for its value. He is compelled to make restitution, either by returning the property if he still has it when the judgment is set aside, or by paying over an equivalent in money. Thus, in Hays v. Griffith, 85 Ky., 377 (3 S. W., 431) (11 S. W., 306), this court, in an opinion by Chief Justice Pryor, who also wrote the opinion in Yocum v. Foreman, supra, held that a sale of property under a judgment subsequently reversed passed the title to the purchaser, but this general rule was announced: "When money has been collected under an erroneous judgment that has been reversed, the party obtaining it may be required to pay back the money by rule to do so, or a Cavanaugh v. Wilson. restitution of the property, if not sold, may be required in the same manner; but the proper remedy, where the land or personalty of the party has been sold, and a recovery of its value is denied, is to bring an action for damages, alleging such facts as will show that the plaintiff is entitled, by reason of the reversal, to what he has been deprived of by the erroneous judgment." The court approved the language used in Thompson v. Thompson, 1 N. J. Law, 159, where it was said the defendant was entitled "to be restored to all he has lost by occasion of the judgment, and this is, and ought to be, the measure of damages." The case of Canal Co. v. Gordon, 2 Abb. U. S., 479, Fed. Cas. No. 13,189, the text of 1 Suth. Dam. p. 831, and cases from other State courts, were cited by the court sustaining the conclusion of the court. The doctrine announced in that case may not be applicable to the broad extent, the language imports in all cases, as was pointed out in Bridges v. McAlister (Ky.) 51 S. W., 603, but this is no reason why it may not be applied here. It is certainly not a new doctrine. In Morgan v. Hart (1848) 9 B. Mon., 80, this court said: "The proceeding by rule or motion for restitution of money or property obtained under the direct operation of a judgment which has been reversed is well known in courts of law, and we have no doubt it is equally allowable and appropriate in courts of equity, where, in the practice in this State, it is often resorted to. The chancellor certainly has power to remedy the injustice which may be done under his own orders, when vacated by an appellate tribunal." The primary object, in view in all the instances when one's property has been seized and sold under judgments subsequently reversed, is, as indicat ed in the last case cited, "to remedy an injustice," and it is manifest any fixed rule must be subject to exceptions. Cavanaugh v. Wilson. Here, if the plaintiffs, Riley and others, had bought the defendant's property, a restitution of the property, if they still owned it, or an equivalent in money, if they did not, would be the simple remedy. There would be no equities on behalf of the purchasers for moneys paid out as the purchase price. The debts canceled by the purchase were no debts at all against the defendant. But while the attorney of these plaintiffs must, under all authority, occupy the place of his clients with respect to having notice of what is in the record, and especially as he was interested in the recovery to the extent of one-fourth, it would yet seem on equitable principles and on the facts of this case, he ought to have back whatever money he has actually paid out as purchase money on the property. He is not in fact a party plaintiff who procured the erroneous judgment and the sale, nor is he a stranger to the record who is to be fully protected in his purchase. He got a good title to the property he bought, just as his clients would have gotten had they bought it, but he must account for what he got just as they must have accounted. The difference is that he got the property burdened or lessened by what he paid out for it, and they would have gotten it without paying out any thing. It is claimed that, being merely an attorney, he is to be protected as a stranger; but this court in Salter v. Dunn, 1 Bush, 319, said: "We regard it as the well-settled doctrine in this and our sister States that an attorney in a case is privy to his client, and as much bound, if not, indeed, more, to take notice of all the errors, as the client; and when he becomes a purchaser at a ju dicial sale, made for the benefit of the client, every error and equity which would avail against him [the client] had he been the purchaser, growing out of the errors and irregularities of the record, would affect the attorney's Board of Councilmen of City of Frankfort v. Deposit Bank of purchase." Freem. Ex'ns, section 349; Freem. Judgm. section 484. In this case the purchaser-the appellee-apparently still holds the property. It follows from what we have said that his claim for rents, as set up in his petition, must be denied; that the value of the property, or the property itself, must be adjudged to Mrs. Cavanaugh. The purchase money paid out by appellee, which appears to have been $2,213, with interest from the 1st day of April, 1889, is to be a charge on the property, less the rents and profits appellee has received from the property since his possession of it in May, 1896. While the proper judgment may be rendered in ordinary where the action is now pending, it may be that the equities of the parties may be more appropriately adjusted on the equity side of the docket. The judgment is reversed for proceedings consistent with this opinion. CASE 102-ACTION TO RECOVER TAXES-JUNE 19. Board of Councilmen of City of Frankfort v. APPEAL FROM FRANKLIN CIRCUIT COURT. JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS. REVERSED. APPEAL AGREEMENT THAT CASE SHALL AWAIT THE DECISION OF Held: Upon appeal from a judgment reciting that the parties agreed to let the case await the decision of certain other cases pending on appeal, an exception to the judgment must be regarded as nullifying that recital, and, in the absence of a plea setting up Board of Councilmen of City of Frankfort v. Deposit Bank of Frankfort. the agreement recited, the appellant is not bound by the decision in the cases referred to, which was afterward overruled. W. H. JULIAN, IRA JULIAN AND J. H. CROCKETT FOR APPELLANT. FRANK CHINN FOR APPELLEE. (No brief in the record.) OPINION OF THE COURT BY CHIEF JUSTICE HAZELRIGG-REVERS ING. This action was brought in August, 1894, by the city of Frankfort against the Deposit Bank for taxes alleged to be due the plaintiff for the years 1892, 1893, and 1894. A demurrer was sustained to the petition so far as it sought to enforce a collection of the taxes of 1892, and for penalties and interest, and, the plaintiff declining to plead further in respect to these items, the petition to such extent was dismissed. This was in September, 1894, and there has been no appeal from that judgment. The bank then filed its answer as to the years 1893 and 1894, relying solely on its alleged contract with the State under the Hewitt law. This answer was filed in September, 1894, and nothing further appears to have been done in the case until on February 1, 1896, when a judgment was rendered upholding the defense set up in the answer, on the authority of the construction given the Hewitt law by this court in the Bank Tax Case of June, 1895, (31 S. W., 1013). The city excepted to this judgment, and prayed an appeal to this court. It did not prosecute this appeal, but sued out an appeal from this court on the 14th of January, 1898, and now asks a reversal of the judgment of February 1, 1896, on the authority of the Bank Tax Cases of March 24, 1897 (39 S. W., 1030). It is due the trial court to note that the judgment complained of was rendered in pursu |