Williams v. Lomner

Court of Appeals of Kentucky

Williams v. Lomner

4 Ky. Op. 61, 1871 Ky. LEXIS 139

DecidedOctober 10, 1871

StatusPublished

This text of 4 Ky. Op. 61 (Williams v. Lomner) 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

Williams v. Lomner, 4 Ky. Op. 61, 1871 Ky. LEXIS 139 (Ky. Ct. App. 1871).

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Opinion

OPINION OF THE CoüRT BY

JuDGE KiNDSAY :

Tbe answer of tbe appellant presents no valid defense. If it be true tbat be held-the bond of Newman for a conveyance of tbe Illinois land in trust for Kamsey and Morris, and tbat tbe note was given in consideration of tbeir surrender to him of tbeir claim to said bond, be at best took it as tbeir assignee.

There is no implied warranty by tbe assignor of a bond for the conveyance of land. Moredock v. Rawlings, 3d Monroe 75. It was tbe duty of tbe appellant to take' tbe necessary legal steps to compel Newman to convey tbe land in compliance with bis bond. And if after tbe use of due diligence, be was defeated in this attempt be would have recourse on Kamsey and Morris on tbeir contract of assignment, but not on an implied warranty of title. His answer discloses tbe fact tbat no suit has as yet been brought by him 'against Newman. No allegation of insolvency is made against bis assignors, and no reason is assigned why be has not attempted to compel Newman to convey.

In addition to this fact be fails upon the trial to prove that Newman has refused to convey.

Tbe judgment appealed from must be affirmed.

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OPINION OF THE CoüRT BY

JuDGE KiNDSAY :

Tbe answer of tbe appellant presents no valid defense. If it be true tbat be held-the bond of Newman for a conveyance of tbe Illinois land in trust for Kamsey and Morris, and tbat tbe note was given in consideration of tbeir surrender to him of tbeir claim to said bond, be at best took it as tbeir assignee.

There is no implied warranty by tbe assignor of a bond for the conveyance of land. Moredock v. Rawlings, 3d Monroe 75. It was tbe duty of tbe appellant to take' tbe necessary legal steps to compel Newman to convey tbe land in compliance with bis bond. And if after tbe use of due diligence, be was defeated in this attempt be would have recourse on Kamsey and Morris on tbeir contract of assignment, but not on an implied warranty of title. His answer discloses tbe fact tbat no suit has as yet been brought by him 'against Newman. No allegation of insolvency is made against bis assignors, and no reason is assigned why be has not attempted to compel Newman to convey.

In addition to this fact be fails upon the trial to prove that Newman has refused to convey.

Tbe judgment appealed from must be affirmed.

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Bluebook (online)

4 Ky. Op. 61, 1871 Ky. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-lomner-kyctapp-1871.