Cates v. Green

4 Ky. Op. 495, 1870 Ky. LEXIS 407

• Court: Court of Appeals of Kentucky
• Decided: September 13, 1870
• Status: Published

Opinion

Opinion oe the Court by

Judge Robertson :

As the record furnishes no reason to doubt that Plunket’s legal title is indisputable, the conveyance made by him pendente lite should be deemed a sufficient assurance of title to Cates. Green does not appear to have acted in buying tbe Equity, otherwise than as Cate’s agent, and tbe indorsement on tbe memorial of bis contract to procure an assignment of tbe title bond to Cates shows that Cates accepted tbe assignment as made in fulfillment of Green’s undertaking. It sufficiently appears that Hudson, as assignee of Plunket bolds an equitable lien on tbe title; and not only was there no need of notice thereof to Oates when be bought a subsequent and subordinate equity, but be bad presumed actual notice when be accepted tbe assignment.

Drane, Collins, for appellant. McManama, for appellee.

But, as Franks seems to owe and to have promised Cates to; pay tbe Hudson note, tbe court ought, by judicial order, to have required him to pay that debt to Hudson, or otherwise procure a release of Hudson’s lien, before decreeing tbe sale of tbe land for enforcing tbe lien against Oates, which ought to be tbe last resort. For this cause tbe judgment for sale is reversed and tbe cause remanded for further proceedings for effectuating tbe end just indicated in tbe mode suggested or, if that fail, for a judgment for tbe amount of tbe lien in favor of Cates against Franks on tbe prayer for general relief. As Green has not denied that be represented tbe title as unimcumbered, be might be liable for the costs of tbe litigation and may possibly be liable to Oates for indemnity against tbe incumbrance, if be should fail in otherwise obtaining it, and for that purpose, tbe pleading, as between them, may be amended, and therefore tbe judgment in Green’s favor is also reversed.