Pritchott v. Humphrey

4 Ky. Op. 378, 1870 Ky. LEXIS 382

• Court: Court of Appeals of Kentucky
• Decided: October 26, 1870
• Status: Published

Opinion

Opinion or the Court by

Judge Hardin :

H. D. Rotbrock, bolding by assignment from James W. Sullivan, tbe bond of John E. Reno for title to a store, bouse and lot, in bis possession, in South Carrollton, sold tbe property to L. W. Knicbolas, and transferred tbe bond by assignment to bim, and in consideration thereof, Knicbolas gave bis note to Rotbrock for $600, and tbe latter transferred the note by delivery to William S. Humphrey; and Knicbolas having sold tbe property to J. J. Pritcbott and Louis Robertson, and assigned tbe bond to them, this suit was brought by Humphrey, asserting and seeking to enforce a vendor’s lien on tbe property for bis debt. And tbe court having adjudged that relief and directed a sale of tbe property to satisfy tbe debt, Pritcbott and Robertson have appealed to this court.

It does not appear that tbe assignment of tbe bond from Rotbrock to Knicbolas contained any express stipulation for reserving a lien for tbe note in controversy, nor even that tbe appellants bad notice when they afterwards purchased tbe property and accepted Knicbolas’ assignment to them, that be bad not paid the consideration of tbe assignment of Rotbrock to bim.

Before tbe adoption of tbe Revised Statutes, tbe right of an assignor of a bond for title, to a lien for tbe consideration of bis assignment, as against a remote assignee of tbe same bond, with notice, was only recognized in analogy to tbe lien of a vendor by an absolute conveyance; and tbe same analogy being preserved, since tbe change in tbe mode of reserving liens affected by section 26, of chapter 80, of tbe Revised Statutes, tbe assignor of a title bond, must not in tbe absence of any express stipulation to tbe contrary, be regarded as having reserved bis right to retain a lien, unless it be stated in the assignment what part of tbe consideration remains unpaid in express terms (Taylor v. Ford, &c., 1 Bush, 44).

Tbe assignment of tbe bond, by Rotbrock to Knicbolas, therefore imparted no lien on tbe property which should have been enforced in this action.

Wherefore, tbe judgment is reversed and tbe cause remanded for a judgment not inconsistent with this opinion.