Hogan v. McMurtry

28 Ky. 633, 5 J.J. Marsh. 633, 1831 Ky. LEXIS 88

• Court: Court of Appeals of Kentucky
• Decided: April 19, 1831
• Status: Published

Opinion

Judge UNDEirwoon,

delivered the opinion of the court,

The opinion heretofore delivered by this court, in this case, Y Mon. 181, proves that Hogan had a right to go into chancery to perfect his title. The proceedings had in the circuit court in pursuance of the opinion of this, shew that the title was not perfected in the heirs of McMurtry, until the execution of the deed by Mason and wife, hearing date 10th November, 1827. If the title had never been perfected, the contract could not have been specifically executed. It was, therefore, erroneous to dissolve the injunction with damages, and to decree costs against Hogan. The court also erred in postponing the ex-ecutionof the decree for a conveyance, until six months after the infants attained full age. Upon the arrival of that period, it is possible that those, now infants, and who are required to convey, might be dead; if so, new proceedings would have to be instituted against their heirs, and if these should happen to be infants, the complainant might find himself engaged in an terminable struggle to obtain a title. The court should have caused a deed of conveyance to be executed for the infant defendants by a commissioner, and reserved to the infants the usual time after arriving at full age, to shew cause against the decree.

Thq foregoing are the only errors we perceive.' For them the decree must be reverse^ with costs, and thq cause remanded with directions to enter a decree if! conformity to this opinion.

'Crittenden, for plaintiffs; Owsley,for defendants.