Frank v. Peyton

• Decision Date: 31 May 1884
• Citation: 6 Ky.L.Rptr. 8,82 Ky. 150
• Parties: Frank v. Peyton.
• Court: Kentucky Court of Appeals

82 Ky. 150

6 Ky.L.Rptr. 8

Frank v. Peyton.

Court of Appeals of Kentucky.

May 31, 1884

1. Appellant, Frank, purchased fro appellee, Peyton and wife, a tract of land in Illinois, and took their conveyances therefor. The certificate of acknowledgment was so defective that it could not be recorded.

2. Appellee ascertaining this fact, attempted to sell it to another porson.

3. Held: A court of equity in Kentucky, upon proof against appellee, has jurisdiction to enjoin him from making the second conveyance, insolvency being averred and shown.

APPEAL FROM BRECKINRIDGE CIRCUIT COURT.

KINCHELOE & ESKRIDGE FOR APPELLANT.

1. This proceeding in equity acts upon the person of appellee, to restrain him from again selling the land conveyed by him and wife to appellant. Although the certificate of acknowledgment is insufficient, and the land lies in Illinois, yet appellee has passed the title to appellant, and the court below has jurisdiction to enjoin him from conveying to another. 6 Cranch, 188; 1 Bibb., 409; 3 Litt., 103; 4 Mon., 436; 3 Bush 136.

JNO. ALLEN MURRAY AND WM. R. HAYNES FOR APPELLEE.

1. It is a good objection to the petition that it fails to allege that appellees have ever refused on demand to reform the deed of conveyance.

2. If this action had been against a non-resident it should have been brought in the county where the land lies.

3. Although actions for the specific execution or rescission of contracts for land are transitory, we find no decision of this court with reference to land lying in another State. This court has no jurisdiction to restrain appellee from conveying land lying in another State. Pulliam v Pulliam, 4 Dana, 123; Pribble v. Hall, 13 Bush 62; Hatcher v. Andrews, 5 Ib., 564; Hynes v Oldham, 3 Mon., 266; Rising v. Beale, 3 Litt., 103; Parrish v. Oldham, 3 J. J. Mar., 545; Holcomb's Eq., 124; 4 Bush, 442.

OPINION

PRYOR JUDGE:

The appellant, J. H. Frank, purchased of Peyton and wife a tract of ten acres of land lying in Cook county, Illinois, for which he paid Peyton five hundred dollars, and accepted the deed of the grantors, passing to him as he supposed such a legal title as could be recorded. The mode of acknowledgment was so defective that the law of Illinois prevented it going to record as evidence of title against innocent purchasers. He holds the legal title, but in such a condition as will not protect him against those who may purchase of his vendor.

These facts are alleged in a petition in equity filed by the appellant with the further allegation that the appellees were attempting to dispose of the property by sale to others, and that by the law of Illinois the innocent purchaser would hold as against an unrecorded deed. An injunction was obtained prohibiting the parties from selling until the questions raised by the petition could be determined.

The appellees filed a demurrer to the jurisdiction, and also an answer, alleging that the deed was in the nature of a mortgage, and so intended by the parties when executed, & c.

When an issue was tendered by the reply to the answer, the court below sustained the demurrer to the jurisdiction, and dismissed appellant's petition.

The facts disclosed in the petition show clearly that the appellant is the owner of the land by reason of the conveyance from the appellees, and...