Young v. Bradford

7 Ky. Op. 62, 1873 Ky. LEXIS 420

• Court: Court of Appeals of Kentucky
• Decided: September 2, 1873
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The petition in this cause did not authorize a judgment for the sale of the land described therein. It does not show the sum for which the land was sold, nor does it state that the notes sued on were executed for the purchase price of such land.

The land was sold on the 18th of February, 1868, and the notes were not executed until the 17th of June thereafter.

There is nothing in the petition showing any connection whatever between the sale of the land and the execution of the notes, and it is not to be presumed that any connection exists.

The amended answer tendered on the 5th of December, 1872, is made part of the record, and although it was not allowed to be filed, this fact authorizes this court to answer it. the notes were executed is part of one of the two tracts alleged to

If it be true that the tract of land for the purchase price of which have been sold and conveyed by Daniel Coleman to Charles Burress, and that N. D. Coleman, who is charged to be the vendor of appellee, release all claim to said lands to the heirs of Burress, then appellee holds no such title as will authorize him to have a specific, performance of his contract of sale to appellant.

Robt. K. Smith, for appellant. -, for appellee.

It is distinctly alleged that by his bond he agreed to convey with general warranty, and although the bond is not on file, yet for the purposes of the motion to file the amended answer this allegation must be taken as true.

The judgment is reversed and upon the return of the cause ap-pellee should be allowed to amend his petition and the amended answer of appellant which is complete within itself will be filed. Further proper proceedings will then be had.