Kenny v. Marsh

• Decision Date: 18 October 1819
• Citation: 9 Ky. 46
• Parties: John Kenny v. Beall Marsh.
• Court: Kentucky Court of Appeals

9 Ky. 46

John Kenny v. Beall Marsh.

Court of Appeals of Kentucky.

October 18, 1819

ON A WRIT OF ERROR TO REVERSE A DECREE OF THE BOURBON CIRCUIT COURT.

OPINION

ROWAN JUDGE

The sheriff of Bourbon county seized and sold the tract of land on which Kenny resided, by virtue of sundry executions in the names of Marsh and others, against the said Kenny, amounting in all to the sum of $400.50. Marsh became the purchaser at the sheriff's sale aforesaid, and supposing that the hundred acres of which the tract consisted, was worth more than the $400.50, the price at which he purchased it, and willing that Kenny should have the land, if he would pay the money for which it had been sold, at and within the times, at and within which, he had become liable by his purchase to pay it, executed to Kenny the following bond, and received a conveyance for the land from the sheriff:

" Know all men by these presents, that I, Beall Marsh, &amp c., August 28th, 1815. The condition of the above obligation is such, that whereas Hiram M. Bledsoe, a deputy sheriff of Bourbon county, by virtue of an execution in favor of said Marsh, and also of sundry executions in favor of others, had this day sold the farm on which the said J. Kenny now lives being all the interest he claims under the will of his father, James Kenny, deceased, on which said John Kenny now resides, and the said Beall Marsh has become the purchaser at the sum of $400.50, and is about receiving a sheriff's deed, conveying the title of the said land. And, whereas, the said Beall Marsh, supposing he has purchased the said land for less than what its real value may be when sold at private sale, and willing to give said John an opportunity to redeem the same at the same price and rates, still retaining the until he is indemnified. Now if, the said John Kenny shall within due time, first pay to the sheriff the money which is immediately due, and shall also pay and discharge the money still becoming due, on the bond due at three months' credit, when they shall be demanded, or shall furnish the said Marsh in due time with money to do so, and shall also, on reasonable time pay and discharge the money due on the execution in favor of the said Marsh himself, and on said John Kenny's paying and discharging said demands, he, the said Marsh, shall release and convey back to the said John Kenny the title of said land, so as to revest said Kenny again with his title, without recourse to said Marsh, at the proper expences of the said Kenny, then this obligation to be void, otherwise to remain in full force and virtue in law."

On the 5th of February, 1816, Kenny paid to Marsh $390, and, therefor, obtained the following receipt:

" Received, in Paris, of Mr. John Kenny, $390, in part of the money that I paid to the sheriff for said Kenny, in paying for his land. 5th February, 1816."

And on the 5th day of April, 1816, he paid him the further sum of $38.97, and obtained therefor the following receipt:

" Received of John Kenny $38.97, the full amount of sundry executions, that I paid to the sheriff of this county, in consequence of the purchase that I made of said Kenny's land at public sale, and all other moneys that I paid for said Kenny. 6th April, 1816."

Marsh had paid the amount of the executions, as they severally became due, long anterior to his receipt of either of the above sums from Kenny. Kenny prayed a decree against Marsh for a conveyance of the land, and also for spoliations made thereon by Marsh. Marsh insisted that the conditions of his bond to Kenny had, in no one...