Kendrick v. Wheatley

• Decision Date: 22 April 1835
• Citation: 33 Ky. 34
• Parties: Kendrick and Others v. Wheatley.
• Court: Kentucky Court of Appeals

33 Ky. 34

Kendrick and Others v. Wheatley.

Court of Appeals of Kentucky.

April 22, 1835

FROM THE CIRCUIT COURT FOR BRECKINRIDGE COUNTY.

Mr Lyle for Plaintiffs: Messrs.

Morehead and Brown for Defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

The only question we shall consider in this case is, whether the circuit court of Breckinridge county had jurisdiction upon any ground presented by the bill.

A suit for rescission, or specific execution, of a contract for land, is not local, but transitory, and the defendant must be summoned in the county or enter his appearance, to give jurisdiction.

Fictitious allegations--as, of a lien upon land, with a prayer to enforce it by a sale, though such matter is local--will not give jurisdiction, when it appears from the whole bill, that there can be no decree upon those allegations.

A purchaser under a decree, should obtain a title; and therefore, all parties interested in the land, should be brought before the court. There should be no sale decreed that will pass no title.

As the defendants neither resided, nor were served with process, in Breckinridge, and as one of them, and the only one against whom the decree was rendered, never answered the bill, or entered an appearance, waiving objection to the jurisdiction the court had no right to take cognizance of the bill, and render the decree rescinding the contract for the land in Breckinridge county; because a suit for rescission or for a specific execution, of an agreement respecting land is not local, but altogether transitory.

The lame and contingent prayer for a decree for enforcing a supposed equitable lien by a sale of the land, did not--although such matter is local--give jurisdiction to render the decree for a rescission; because it is evident that, according to the bill itself, there was no ground for a decree for the sale of the land. The bill asked for a specific execution if the title was good, and sought an enforcement of a lien, alleged to have been derived from the vendor of the principal defendant, in the event only of there being no title! The chancellor should never decree the sale of land, unless the purchaser can obtain, under the decree, a title; and this end, all persons interested in the title should be made parties before such a decree should be rendered. But the bill in this case, not only did not ask a decree for a sale if the person against whom the decree was sought had a...