Smith v. Raymond's Admr.

3 Ky. Op. 658, 1869 Ky. LEXIS 538

• Court: Court of Appeals of Kentucky
• Decided: October 5, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson:

Smith, sues Raymond’s administrator and heirs for a breach of a covenant of warranty binding the vendor and his heirs.

The administrator, after answer, was permitte’d to withdraw it and move a dismission of the petition, because a sufficient demand on the proper statutory affidavit had not been made of the administrators. And the court accordingly dismissed the petition without prejudice.

It has been already adjudged that, before full preparation, such an answer may be withdrawn, and such a dismission may be ordered.

And, though the heirs could require no such statutory demand, yet, as their liability is ulterior and joint, the dismission as against the administrator must prevent a separate proceeding against them also. The personal assets must be exhausted before the real can be made liable. Hill v. Golden, 16th B. M., 555.

Wherefore, the judgment is affirmed.