McCalla v. Heggins

3 Ky. Op. 494, 1869 Ky. LEXIS 492

• Court: Court of Appeals of Kentucky
• Decided: June 11, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

Although the larger and the smaller tracts were sold together, yet when the first installment of the purchase price was paid, by the agreement of the parties, so much thereof as should be sufficient to pay the whole cost of the smaller tract was to be so applied, and the residue thereof was to go as a payment on the larger tract, on which the lien was retained for what remained unpaid. And it was further agreed that Thomason, a remote vendor, but who held the legal title to the smaller tract, should convey it to Winn, to save the expense of making the intermediate deeds from Thomason to Emerson, his immediate vendee, and he to Dehoney’s trustee, and Tilford, the surveyor, was directed to prepare the deed for Thomason to execute, which he did, and it was so executed, delivered and acknowledged before the proper officer before Heggins’ execution was levied on the land.

Darnaby & Prewitt, for appellant. Cantrill, for appellee.

That the legal title passed by that deed to Winn for the smaller tract there can be no doubt, and that it would have been satisfactory to Winn, and was so until Heggins had his execution levied on it, there is as little doubt.

But even if that were not so, it is not shown that the larger tract, on which Dehoney and his trustee have a lien for all of the unpaid price, is not sufficient for its payment, and they should be required to look to it for payment.

We are satisfied, however, that the srhaller tract was subject to the sale, and levy, when Heggins fi fa'was levied on it, as the legal title was in Winn. And we, therefore, affirm the judgment.