Shepherd v. Hubbard

4 Ky. 494, 1 Bibb 494, 1809 Ky. LEXIS 117

• Court: Court of Appeals of Kentucky
• Decided: October 10, 1809
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Bibb.

— Hubbard declared against Shepherd upon a covenant to make a deed in fee simple to certain town lots “ whenever the building is complied with as per articles.5'1 The breach was assigned generally, that the said cove-nantor had not made a deed, &c. although often requested. Upon the plea of covenants performed, the plaintiff had verdict and judgment ; to which Shepherd prosecutes this writ of error.

The first error assigned is, that Hubbard could not prosecute the suit in his own name, after an assignment (endorsed upon the covenant) to Brashear.

As the assignment of the covenant is not stated in the declaration, and no over of the covenant and endorsement was demanded, this court, according to repeated decisions, cannot regard the endorsement alluded to — - (Vide Marshall vs. Bohannon, ante 227 — M'Lean vs. Lillard, ante 146 — Finnie vs. Martin, ante 41 — Brown, vs. M' Connel, ante 267.)

The second assignment objects to the declaration that no special request is averred.

The third assignment objects that the declaration does not aver that the buildings had been u complied with’1 in the covenant mentioned.

The only doubt which arose upon these assignments, was, whether they were not cured by the plea of covenants performed, and the verdict thereon. But upon consideration it seems to us that those defects in the declaration are not cured. The obligation to make a deed was not direct and immediate, but to arise out of a collateral act. Until the buildings were completed the covenan-tee had no right to demand a conveyance. The performance of the articles for building previous to the conveyance of the lots, wasparcelof the covenant; it should have been averred, and if averred, it must be proved. Until notice of the compliance and request

(a) made of a deed, no action arose. The declaration therefore was materially defective, and set forth no cause of action. The plea of covenants performed, did not admit that which was not averred, nor admit a cause of action where none was stated — Vide 1 Saunders 32, Birks vs. Trippet, and note (2).

Vide Worley vs. Mourning, ante 254.