Cummins v. Whaley's Administrator

5 Ky. Op. 246, 1871 Ky. LEXIS 350

• Court: Court of Appeals of Kentucky
• Decided: October 18, 1871
• Status: Published

Opinion

Opinion by

Judge Pryor:

The deed from Benjamin Whaley to Benjamin T. Whaley was of record in the clerk’s office of the Harrison county court at the time of the purchase of the land by both Whaley and the appellant Cummins. This deed cbntained the provision that no sale of the land could be made without the consent of the grantors Benjamin Whaley and his wife, and was notice to the world of the reservations and conditions therein made. Henry, under whose title the appellant claims, had notice of the lien of Benjamin Whaley on the land, and set it up as a defense to the suit against him to enforce the lien for the purchase money by Minor and claimed in hjs answer to be a party to the suit of Benjamin Whaley as his son, in which an effort was being made to annul the deed under which Henry claimed to have derived title. The case of Minn v. Henry was also consolidated with the suit of Benjamin Whaley v. Mary Whaley, etc., and the judgment therein rendered was binding when all the parties had been served with process in either action.

Neither Henry nor the appellant Cummins can be regarded as innocent purchasers. There is no proof of any such consent by Benjamin Whaley as would authorize this court to divest him or his heirs of the title to this land, but on the contrary the evidence shows that he refused to sign the deed when. called on for that purpose. We perceive no error in the judgment of the court below, and the same is now affirmed.