Estill's Heirs v. Hoy's Ex'rs

3 Ky. 88

• Court: Court of Appeals of Kentucky
• Decided: April 22, 1807
• Status: Published

Opinion

The Opinion of the Court. — In this case the executors of William Hoy, deceased, who were plaintiffs in the inferior court, brought an action on the case against the heirs and executors of James Estill, deceased, the plaintiffs in error, upon a contract entered into by the said James Estill, in his life time, for the conveyance of a tract of land to the said William Hoy ; which contract was reduced to writing and signed by the said James Estill [on the 7th day of December 1781.]

It will be unnecessary for the court to consider all the errors assigned ; there being one which the court deem iatal to the action : the first error assigned in the additional assignment of errors, is, “ That this suit was r.ct maintainable against the heirs.”

The general rule of the common law, is, that heirs cannot be sued upon the contracts ot their ancestors. To this rule there is an exception, that where the ancestor in an obligation (by which is meant a writing under seal) binds himself and his heirs, by name, an action of debt or covenant may be brought thereon against the heirs. But the court can find no instance Or precedent of an action on the case being brought or maintained against the heir upon any contract made by the ancestor. And there is no statutory provision authorising such action.

The court, without determining at this time whether any other remedy may be had against James Estill’s heirs upon the contract on which this suit is founded, are clearly of opinion the plaintiffs in the inferior court misconceived their action, and that this suit cannot be maintained.-Judgment reversed.