Thomas v. Marshall

3 Ky. 19

• Court: Court of Appeals of Kentucky
• Decided: July 25, 1805
• Status: Published

Opinion

Opinion of- the Court — Upon a full and mature consideration of the act subjecting of lands to the payment of debts, the court is of opinion, that lands, teñe-ments and hereditaments are only liable to be sold by virtueof executions }n those cases, and where the party Eas such interest as would authorize the sale of goods and chattels at common lav/, That to make them further or otherwise liable, would produce the most absurd con-. sequences ; destroy well settled distinctions and princi-pies, and introduce new and confused rules of proceeds fogS . for which reasons it cannot be presumed that the legislature intended to subject mere equitable claims and interests in lands, tenements and hereditaments to sale by execution ; especially as the words used in the act, in their legal sense, may, with propriety, be applied to legal rights only. And therefore lands and contracts for land, or the land described therein, are not subjected by the said act to be sold, more than bonds and contracts for a specific chattel, or any other chose in action, could.

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An entry or ⅞ inchoate pal title, and jnay be fold by execution.

But in considering what are, and what are not equitable interests ; and from the view which the court has taken of the manner in which a man may acquire and cora-píete a title to lands, it is the opinion of the court that an entry or survey for lands is an inchoate and incomplete legal title ; they will descend, may be devised, or aliened, and that they vest such legal interest as under the provisions of the act may be sold by virtue of execifo tions.

Decree reversed.

Allen vs. Sanders, fpring term, 1810, S. P.