Barker v. Compton

Court of Appeals of Kentucky

Barker v. Compton

5 Ky. Op. 70, 1872 Ky. LEXIS 199

DecidedMarch 14, 1872

StatusPublished

This text of 5 Ky. Op. 70 (Barker v. Compton) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barker v. Compton, 5 Ky. Op. 70, 1872 Ky. LEXIS 199 (Ky. Ct. App. 1872).

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Opinion

Opinion of the Court by

Judge-Pryor:

The judgment subjecting the real estate described in the petition was not authorized by the pleadings. There is no allegation in the petition that the appellant had any lien whatever on the property even for the payment of his debt. The deed that he alleges was the consideration for the execution of the note is not made part of his petition, and no statement by him, express or implied, authorized the court to adjudge that there was a lien retained in. the deed for the payment of the note sued on. As between the vendor and vendee no lien exists unless retained in the deed. The judgment of the court below is reversed and cause remanded with directions (the plaintiff being the purchaser) to set aside the sale and for further proceedings consistent with this opinion. The plaintiff ought to be allowed to amend his pleadings.

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Opinion of the Court by

Judge-Pryor:

The judgment subjecting the real estate described in the petition was not authorized by the pleadings. There is no allegation in the petition that the appellant had any lien whatever on the property even for the payment of his debt. The deed that he alleges was the consideration for the execution of the note is not made part of his petition, and no statement by him, express or implied, authorized the court to adjudge that there was a lien retained in. the deed for the payment of the note sued on. As between the vendor and vendee no lien exists unless retained in the deed. The judgment of the court below is reversed and cause remanded with directions (the plaintiff being the purchaser) to set aside the sale and for further proceedings consistent with this opinion. The plaintiff ought to be allowed to amend his pleadings.

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Bluebook (online)

5 Ky. Op. 70, 1872 Ky. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-compton-kyctapp-1872.