Burton v. McKinney

69 Ky. 428, 6 Bush 428, 1869 Ky. LEXIS 174

• Court: Court of Appeals of Kentucky
• Decided: January 17, 1869
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion of the court.

In attempting to enforce McKinney’s lien on the equitable title of Burton, the circuit court had no right to adjudge the sale of the whole of the land for undue installments of the consideration promised by Burton for the sale of the land to him by McKinney. Burton was not liable to judgment for the whole consideration until the whole was due; and if the decree had subjected the Land to pay only the two installments then due, he might perhaps have prevented the sale by paying the amount adjudged, when he might not have been able to pay the installments which were then 'not demandable. The allegation that a sale at once of the entire tract was necessary to prevent loss to the creditor did not authorize a sale to pay undue installments, or to require Burton to anticipate payment before the conventional time of payment.

Wherefore the judgment is reversed, and the case remanded for further proceeding, and a resale of the land for whatever shall appear due at the time of the ultimate judgment.