Stewart v. Hutton

• Decision Date: 04 January 1830
• Citation: 26 Ky. 178
• Parties: Stewart v. Hutton.
• Court: Kentucky Court of Appeals

26 Ky. 178

Stewart v. Hutton.

Court of Appeals of Kentucky.

January 4, 1830

Lien. Equity in Land. Consideration. Assignor. Parties.

ERROR TO THE CHRISTIAN CIRCUIT; B. SHACKLEFORD, JUDGE.

Denny for plaintiff.

OPINION

THE CHIEF JUSTICE.

This is a bill in chancery, filed by James Stewart, against George Hutton, for the conveyance of the legal title to a tract of land.

The bill alleges that Hutton, being entitled by entry and survey to the equity in the land, sold it to Gunterman, who sold it to Reeder, who sold it to Carrol. That Reeder having sued Carrol in chancery, for the purpose of enforcing his lien on the equity, for the consideration, obtained a decree for the sale of the land. That the commissioner appointed by the decree, sold the right of Carrol, in obedience to the order of the court, and that Stewart, (the complainant,) bought it and that since the decree and sale, Stewart had paid a balance due to the state, for the land, and procured a patent for it, in the name of Hutton, who nevertheless, refused to convey the title to him.

Hutton demurred to the bill, and the court sustained the demurrer and dismissed the bill.

The correctness of this decision is the only question presented by the record.

That the decree for enforcing the lien, however irregular it may be, should be considered valid, in any case in which, as in this, it is used as evidence of the transfer of Carrol's equity, can not be doubted. One, who sells an equitable right to land, retains a lien on it for the consideration, whenever, under the same circumstances, the vendor of the legal title would hold an equitable lien. The same principle and reason apply to both cases.

Vendor of equitable right to land, retains lien on it for consideration, whenever under same circumstances, vendor of legal title would hold equitable lien.

Nor have we any doubt that the statute of frauds and perjuries is inapplicable to this case. The bill does not show that the various contracts which it mentions, were not conformable to the requisitions of this statute. And, therefore, the legal presumption is, that the contracts were in writing.

Nor do we consider Reeder and Carrol, necessary parties in this suit. They are concluded by the decree for selling Carroll's equity, and to perfect the title acquired, under which decree is the only object of this bill.

But Gunterman is not bound by the decree. It does not appear that he w...