Perciful v. Hurd's Heirs
| Decision Date | 23 April 1831 |
| Citation | 28 Ky. 670 |
| Parties | <I>Pereiful</I> <I>vs.</I> <I>Hurd's heirs.</I> |
| Court | Kentucky Court of Appeals |
IN 1817, Calvin Hurd mortgaged to Samuel Blight, seventy five acres of land on Doe run, which the latter had sold and conveyed to the former, to secure the payment of the purchase money.
In 1826, Blight filed his bill against Zadock Hurd, sen. heir at law, and Zadock Hurd, jun. the administrator of Calvin Hurd then dead, to foreclose the equity of redemption. Pending this bill, to wit: in March, 1827, Blight conveyed the said seventy five acres as mortgaged to him, and transferred and made over all the money due on the mortgage to James Perciful. At the May term, 1827, the death of Zadock Hurd, sen. was suggested on the record, and at the same time, Perciful filed a bill of revivor, (as the record states,) in the nature of an original bill against the heirs of said Zadock, sen. From an amendment filed at a subsequent term by Perciful, it seems to have been his design that the suit should progress in his and Blight's names as co-complainants. None of the defendants answered, except Justus Hurd. He, in his answer denied that the land had descended to Zadock Hurd, sen. He claimed the whole or a part, as a purchaser from Calvin Hurd, and exhibited a deed from him, dated in May, 1820. He denied that Blight had title when he sold and conveyed to Calvin Hurd, and called for an exhibition of his title, and he insisted that there was a paramount equitable, if not legal title to the land, held by Calvin Hurd, under an entry and patent, in the names of Isaac and Joseph Vanmeter. He made his answer a cross bill, and asked for a rescission of the contract between Blight and Calvin Hurd, and that his title might be quieted.
The court dismissed the bill of the complainants, and the cross bill of the defendant, Justus Hurd, absolutely. To reverse the decree, the complainant Perciful, and the heirs of Blight, who were made parties after the death of their ancestor, in his place prosecute this writ of error.
The ground upon which the court dismissed the bill, was, we presume, the failure of Blight or Perciful to exhibit a title to the land. Whether it was incumbent on them to exhibit a title, is the most important question in the cause. We are of opinion that it was not required of either, by law, to do it. The contract between Blight and Calvin Hurd, was no longer executory. It had been fully executed, so far as it related to the title. The execution of the mortgage by Calvin Hurd to Blight, is sufficient evidence, that Hurd had accepted Blight's deed of conveyance. If this was made with warranty, Hurd has his remedy upon it for any defect of title, and should be compelled to pay the purchase money, unless he could allege and prove fraud, or the existence of some fact, such as nonresidence or insolvency, upon which the court of chancery might entertain jurisdiction. Nothing of the kind has been alleged in this case. The allegation of a paramount title derived from the Vanmeter's, is not, alone sufficient. If the contract had not been exceuted on the part of Blight, and he was seeking to enforce an equitable lien on the land to secure the purchase money, then it would have been incumbent upon him to shew ability to comply with his contract by an exhibition of title. In such a case, the chancellor should see that it was in nothing deficient. But where the party has accepted a deed, it is equivalent to an acknowledgment that the grantor has fulfilled his engagement, or if not, that the remedy afforded by the deed will be enforced against him. With this, the chancellor should be content, and should not interfere, unless there be some allegation of the character suggested in addition to the call for the production of title.
Perciful's bill refers to the record and proceedings in an action of ejectment, instituted by Blight's lessee against Justus Hurd and others, in which a judgment was rendered in favor of the plaintiff, and makes them a part of the bill. Blight's title is set out in a bill of exceptions in that cause, and from it his title appears to be superior to that of Vanmeter now relied on by Hurd.
In the answer of Hurd, he admits...
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