Frank v. Carlton

5 Ky. Op. 653, 1871 Ky. LEXIS 548

• Court: Court of Appeals of Kentucky
• Decided: June 14, 1871
• Status: Published

Opinion

Opinion by

Judge Peters :

Solomon P. Frank died in Covington in 1849, intestate, leaving a widow, and.the appellant, Solomon P. Frank, his only child of tender years. His administrator filed his bill in equity in the Kenton circuit court, alleging that his intestate left no .personal estate and no real estate except a lot in the city of Covington, particularly described, which he had purchased of one Herman Carlton by executory contract at the price of two hundred and fifty dollars, no part of which had been paid, and that he held the bond of Carlton for the conveyance thereof and that he owed to one Higgins $30 and prayed for a sale of the lot to pay said debt. The widow and infant child were served with process, but before there was any answer by a guardian ad litem and without a response to him, so far as appears, the master made a report and a sale of the lot was ordered and was made, but was set aside on the 17th of September, ,1850, and on the 21st of the same month, J. F. Fish, Esq., was appointed guardian ad litem for the infant, and on the 31st of October thereafter, Carleton filed his answer to the original bill making it a cross-bill against the widow and heir at law of decedent. Summons were issued on this cross-bill and served on both the defendants thereto and C. B. Bartlett appointed guardian ad liteni to defend for the infant. Bartlett failed to make any answer and the original bill was dismissed, and under the cross-bill of Carlton the lot was' decreed to be sold and was actually sold, and P. S. Bush became the purchaser thereof in 1852. But whether a deed was ordered to be made to him and was made and properly acknowledged and certified does not appear, and from the judgment aforesaid, the heir has appealed.

Menzies & Furber, appellant. Dawson, for appellee.

• It seems that the notes executed for the price of the land to Carlton were filed by the administrator with the original petition and how he became possessed of them is unexplained, and a sale was ordered before Carlton had answered in the first instance.

By an examination of the cross-bill it will be perceived that the allegations thereof are insufficient to authorize the relief sought. It is alleged that intestate had not paid off said notes in his lifetime, but it is not alleged that they, had not been paid since his death, nor that they were then due and owing. Furthermore, Carlton neither alleges that he is willing to make a title to the lot, nor that he has title and is able to make it to appellant.

This court has repeatedly held that a vendor seeking a specific execution must allege a readiness and an ability to execute it on his part and tender a deed. Therefore, for the errors pointed out in the proceedings, the judgment must be reversed and the cause remanded with directions for further proceedings consistent herewith.