Febrenbacke v. Straus

2 Ky. Op. 506, 1868 Ky. LEXIS 469

• Court: Court of Appeals of Kentucky
• Decided: September 29, 1868
• Status: Published

Opinion

OPINION OE THE OOURT BY

JuDGKE E.OBERTSON:

The matter set up in the petition was insufficient as a defense, either at law or in equity. The pretended sale of the appellee’s house, though voidable by him, is binding on the appellant by estoppel. And there being no doubt that, as to title, the appellant is the only beneficial party, he is undoubtedly liable for rent or interest.

The injunction was not maintainable even if the matter alleged had been available in the proper mode and at the proper time. No good reason for suffering judgment by default has been shown. The matter ought to have been pleaded as a defense to the action and is not therefore now cognisable in equity.

The injunction was, therefore, properly dissolved. And we perceive no error in the judgment. The ostensible vendee of appellee’s house was a party, and the house sold under execution was 1 not the same, and thus all parties interested are concluded.

Wherefore, the judgment is affirmed.