Todd v. Lancaster

47 S.W. 336, 104 Ky. 427, 1898 Ky. LEXIS 185

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1898
• Status: Published

Opinion

JUDGE HAZELRIGG

delivered the opinion op the court.

It is well settled that suits for rescission or for specific performance of agreements respecting land are transitory, and not local. Kendrick v. Wheatley, 3 Dana, 34 (1835); Bullitt y. E. K. Land Co., 18 Ky. Law Rep. 230 [36 S. W. 16]. But this rule is not applicable to suits against non-residents. In such cases the courts where the land is situated have jurisdiction to rescind the contract for fraud or other reason, or enforce its specific execution. This is a rule of necessity. Dicken v. King, 3 J. J. Marsh. 592 (1830); Berryman v. Mullins, 8 B. Mon. 152; Newm. Pl. & Prac. 38. The purpose of the present action is to rescind a contract involving a swap of lands; those of appellee being in Kentucky, and those of appellants being in Florida. The chancellor decreed a rescission. We have seen that the Kentucky court where the appellee’s land was situated had jurisdiction, and, the remaining questions — the existence of fraud, want of title, and misrepresentation of material facts inducing the trade — being questions of fact, we do not feel inclined to disturb the chancellor’s finding; and especially so as it appears that the appellant Todd has not performed a material part of the contract, by paying off a mortgage on the Kentucky land, for the payment of which appellee was personally bound. Judgment affirmed.