Bosley v. Mattingly

• Decision Date: 28 June 1853
• Citation: 53 Ky. 89
• Parties: Bosley <I>vs.</I> Mattingly.
• Court: Kentucky Court of Appeals

53 Ky. 89

Bosleyvs.

Mattingly.

Court of Appeals of Kentucky.

June 28, 1853.

ERROR TO WASHINGTON CIRCUIT.

Judge SIMPSON delivered the opinion of the court.

This was an action by ordinary proceedings brought by Mattingly against Bosley for a debt due by note. The defendant filed an answer in which he stated that the note, upon which the action was brought, was executed solely in part consideration of the tavern house, and lots, and appurtenances thereto attached, now occupied by him in the town of Springfield, which the plaintiff had sold to him at the price of thirty-five hundred dollars. That the contract of purchase was executory, and the plaintiff was wholly unable to comply with its terms, which required him to convey to the defendant a good title to the property, by a deed containing therein a covenant of general warranty. He specified in his answer several defects which exist, as he alleged, in the the plaintiff's title, and called upon him for an exhibition of his title papers. He made other persons parties to his answer, on the ground that the title to an undivided fourth part of the property purchased by him from the plaintiff, was vested in them, and prayed for a rescision of the contract between the parties, and that an account be taken of rents and improvements.

On a subsequent day of the term, after the defendant had filed his answer, he moved the court to transfer the action to the equity docket, but the court overruled his motion, and, disregarding his answer, proceeded to render a judgment against him. To the refusal of the court, to transfer the action to the equity docket, the defendant excepted at the time, and has prosecuted a writ of error to reverse the judgment against him.

In support of the judgment, it is contended that when an action has been properly commenced by ordinary proceedings, no matters exclusively equitable, can be relied on as a defense, but that the eighth section of the Code of Practice, title one, only authorizes a change of the proceedings when it appears that the plaintiff should have adopted equitable instead of ordinary proceedings. It is argued that this construction should be given to the Code, because if a defendant, when he is sued upon a promissory note, can rely upon an equitable defense, and thereby prevent the plaintiff from recovering a judgment against him, until the matters involved in such a defense can be investigated, that the debt may be lost during the continuace of the litigation.

It...