Russell's v. Moore's heirs

Court of Appeals of Kentucky

Russell's v. Moore's heirs

60 Ky. 436, 3 Met. 436, 1861 Ky. LEXIS 14

CourtCourt of Appeals of Kentucky

DecidedJune 25, 1861

StatusPublished

Cited by3 cases

This text of 60 Ky. 436 (Russell's v. Moore's heirs) 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

Russell's v. Moore's heirs, 60 Ky. 436, 3 Met. 436, 1861 Ky. LEXIS 14 (Ky. Ct. App. 1861).

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Opinion

JUDGE DUVALL

delivered the opinion oe the court :

A tract of land and certain slaves had been assigned to Mrs.' Moore, as dower in the estate of her deceased husband. Whilst in possession as dowress she bought of William Moore, one of her sons, his reversionary interest in the land and slaves. The purchase of his interest in the land was by executory contract, and of his interest in the slaves by an absolute bill of sale.

An execution subsequently issued in favor of Busey against said William Moore, and was levied upon his interest in the dower land and slaves, of which Russell became the purchaser at the sale made under this execution. And the only question presented by the record is whether the title thus acquired by Russell will prevail over the equity of Mrs. Moore.

We are not awarq that any similar question has ever been decided by this court. By the English authorities, however, the doctrine seems to be well settled that the possession of a tenant is notice to a purchaser of the actual interest he may have, either as tenant, or by an agreement to purchase the premises. In the case of Daniels v. Davidson, (16 Vesey, 250,) Lord Eldon held, that “where there is a tenant in possession under a lease or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession.” And further, that in that case “the tenant, being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession.”

American decisions to the same effect might be cited if deemed necessary. The doctrine is not only thus sanctioned by the highest judicial authority, but, in our judgment, is consistent with reason and sound policy.

The judgment of the circuit court being in conformity with this view is affirmed.

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JUDGE DUVALL

delivered the opinion oe the court :

A tract of land and certain slaves had been assigned to Mrs.' Moore, as dower in the estate of her deceased husband. Whilst in possession as dowress she bought of William Moore, one of her sons, his reversionary interest in the land and slaves. The purchase of his interest in the land was by executory contract, and of his interest in the slaves by an absolute bill of sale.

An execution subsequently issued in favor of Busey against said William Moore, and was levied upon his interest in the dower land and slaves, of which Russell became the purchaser at the sale made under this execution. And the only question presented by the record is whether the title thus acquired by Russell will prevail over the equity of Mrs. Moore.

We are not awarq that any similar question has ever been decided by this court. By the English authorities, however, the doctrine seems to be well settled that the possession of a tenant is notice to a purchaser of the actual interest he may have, either as tenant, or by an agreement to purchase the premises. In the case of Daniels v. Davidson, (16 Vesey, 250,) Lord Eldon held, that “where there is a tenant in possession under a lease or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession.” And further, that in that case “the tenant, being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession.”

American decisions to the same effect might be cited if deemed necessary. The doctrine is not only thus sanctioned by the highest judicial authority, but, in our judgment, is consistent with reason and sound policy.

The judgment of the circuit court being in conformity with this view is affirmed.

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Bluebook (online)

60 Ky. 436, 3 Met. 436, 1861 Ky. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russells-v-moores-heirs-kyctapp-1861.

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