Albertson v. Prewitt

• Decision Date: 28 January 1899
• Citation: 49 S.W. 196
• Parties: ALBERTSON et al. v. PREWITT et al. [1]
• Court: Kentucky Court of Appeals

49 S.W. 196

ALBERTSON et al. v. PREWITT et al. ^[1]

Court of Appeals of Kentucky.

January 28, 1899

Appeal from circuit court, Wayne county.

"Not to be officially reported."

Action by W. H. Albertson and others against Minerva Prewitt and others to enforce a lien on land. Judgment for defendants and plaintiffs appeal. Reversed.

Sam C Hardin and Joseph Bertram, for appellants.

J. A Brents, for appellees.

HAZELRIGG C.J.

In 1876, George B. Davis conveyed to J. Y. Redman "all the lands said Davis holds on the Dry Fork of Otter creek," containing 350 acres, in consideration of the sum of $270 paid in hand; but it was further agreed in the writing that if Davis paid this sum back to Redman "against the end of three years, the obligation was to be null and void." Davis, with his wife and children, occupied the land named in the instrument, which was worth less than $1,000, until his death, in 1885; and thereafter his wife continued to occupy it, with the children, until her death, in about 1891, by which time the children had all become of age. There appears to have been no administration on the estate of Davis, and in 1886 this suit was brought by Redman against the widow and children for a sale of the land to pay the mortgage debt. Several reasons are urged to defeat recovery. One is that the mortgage is invalid because the description of the property is too indefinite for identification. It appears, however, that by additional pleadings the plaintiffs set out the lands owned by the mortgagor by metes and bounds, and, while this was necessary for the guidance of the court in making certain the lands to be sold, we do not regard the instrument void for uncertainty. In Starling v. Blair, 4 Bibb, 288, a mortgage of all the lots the mortgagor owned in Frankfort, whether he had the legal or the equitable title, was held valid as to all lots that could be identified as the lots of the mortgagor. See, also, Wilson v. Boyce, 92 U.S. 320; Usina v. Wilder, 58 Ga. 178. It is also insisted that the suit should have been dismissed because there was no demand made accompanied by the proper affidavit; but, there having been no personal representative, no demand was necessary. The claim was purged of usury, etc., subsequently; and, although this affidavit is not in the precise form required, no objection was made to it on that account. Johnson v. Belt, 4 Bush, 405. The chief defense, however, is that the...