Guy v. Butler

69 Ky. 508

• Court: Court of Appeals of Kentucky
• Decided: February 1, 1869
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion or the court.

Jacob F. Pelly, original owner of tbe equitable title to tbe land, and of tbe legal title to tbe notes executed by the Cunninghams as the consideration for his sale of the land to them, having parted with both titles, was not a necessary party to Elizabeth G-uy’s cross - petition for enforcing her lien for the note assigned to her by J. E. Pelly.

When that note was assigned it operated as an equitable lien on the land, which the subsequent conveyance to the Cunninghams of the legal title by the holder of it, reserving a lien for the two notes assigned to Butler and preterm'it-ting the note assigned to Elizabeth Guy, did not squeeze out, if, as her cross-petition alleged, the parties to that conveyance had notice of her equity, and fraudulently designed thereby to deprive her of it.

The demurrer admits her allegations, and ought therefore to have been overruled. Consequently the circuit court erred in sustaining the demurrer, and decreeing the sale of the land for paying the notes held by Butler alone.

Wherefore that judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.