Miller v. Hall
| Decision Date | 30 May 1826 |
| Parties | Miller v. Hall & Hanks. |
| Court | Kentucky Court of Appeals |
Absent Defendants. Order of Publication. Editors' Certificate. Evidence. Practice. Parties. Mandate.
APPEAL FROM THE MONTGOMERY CIRCUIT; SILAS W. ROBBINS, JUDGE.
Triplett for appellant.
Monroe for appellees.
Miller the appellant, purchased a tract of land from the appellee, Richmond Hall, and executed his bonds for the purchase money, and received from Hall the assignment of a bond on a certain Wilson, stipulating to convey the land. Hall assigned one of the bonds for the purchase money to the appellee, Hanks, who brought suit thereon and recovered judgment; the rest of the bonds still remaining unpaid in the hands of Hall.
Contract, assignment and judgment at law.
To be relieved against this judgment, and vacate the contract entirely, Miller filed this bill, relying upon the grounds, that Hall, when he sold the land, did not possess it as owner, but as a tenant to an adverse claimant from whom he had first taken a lease, and after entering under the lease had bought of Wilson, another claimant, and had taken his bond to convey the land, and had concealed that circumstance, when he sold to Miller. That the lease was not expired at the sale, and that he, Miller, was bound to surrender the land to the lessor, and had done so.
Miller's bill for injunction and rescission of the contract against Hanks and Hall.
Hanks, the assignee, answered the bill. Against Hall, as a non-resident, publication was directed.
Order of publication
The court below dismissed the bill on the merits--to reverse which decree this appeal is prosecuted.
Decree.
We differ from the court below on the merits of the case, and do not conceive that the claim can be sustained. But, as there are other points on a reversal of the decree, affecting the regularity of the proceedings, which must send the cause back for new proceedings, we forbear to render an opinion in detail upon the merits, as they may be much altered before another hearing.
Remarks as to the merits.
Hall was a necessary party, especially as the whole contract can not be vacated without him.
Parties.
An order of publication was regularly made against him in court. But the copy which is certified with the proof of its publication, has not with it, or on it, the date or term at which it was made. It requires the defendant to appear at the next April term, but at what April term, as a term of the same name revolves every year, can not be told for the want of the date or term, at which the order made. Of course the...
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