McMichael v. McMichael

Court of Appeals of Kentucky

McMichael v. McMichael

3 Ky. Op. 613, 1869 Ky. LEXIS 523

DecidedJuly 7, 1869

StatusPublished

This text of 3 Ky. Op. 613 (McMichael v. McMichael) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMichael v. McMichael, 3 Ky. Op. 613, 1869 Ky. LEXIS 523 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Williams:

The application to the original petition, of the demurrer of the plaintiff to the defendant’s original answer by no means disposed of the answer which still remains as a defense and raises issues to be tried by the court of an equitable nature, therefore, it was erroneous on the dismissal of the second answer to adjudge by default against the defendant and the judgment is reversed for this error with directions to permit the defendant to answer the amended petition and then proceed to try the equitable and legal [614]*614issue. A mortgagee in possession cannot be ousted until tbe mortgage be satisfied, hence it is, essential to determine tbe mortgage set up by defendant.

Draffin, for appellant. Hank, for appellee.

Judgment reversed.

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Opinion of the Court by

Judge Williams:

The application to the original petition, of the demurrer of the plaintiff to the defendant’s original answer by no means disposed of the answer which still remains as a defense and raises issues to be tried by the court of an equitable nature, therefore, it was erroneous on the dismissal of the second answer to adjudge by default against the defendant and the judgment is reversed for this error with directions to permit the defendant to answer the amended petition and then proceed to try the equitable and legal [614]*614issue. A mortgagee in possession cannot be ousted until tbe mortgage be satisfied, hence it is, essential to determine tbe mortgage set up by defendant.

Draffin, for appellant. Hank, for appellee.

Judgment reversed.

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Bluebook (online)

3 Ky. Op. 613, 1869 Ky. LEXIS 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmichael-v-mcmichael-kyctapp-1869.