Coffee v. Cook , 1868 Ky. LEXIS 341 ( 1868 )

Opinion op the Court by

Judge Hardin :

It is well settled that an assignment of a bond for a conveyance of land does not import a warranty of the tittle, and only imposes on the assignor the responsibility, ordinarily devolved on assignors resulting from a failure of the assignee after due diligence to compel a compliance with the terms of the bond. The notes in controversy in this case being given for part of the consideration of the assignment of the bond given by Williams as guardian of Ferguson it devolved on the defendant, in order to avail the notes, to show either a failure to enforce the covenanty of the bond by the prosecution of a suit thereon with due diligence or such other facts as would have entitled the appellant to a recovery against the appellee in consequence of the assignment if the entire consideration thereof had been paid such a ground for relief is not, in onr opinion, established on the part of the appellant in this case. The answer of Ferguson tendering his deed in compliance with the covenant of his late guardian is a sufficiene respone to the allegation that Williams was unable to have the title conveyed so far as it vested in Ferguson, and it does not appear that Ferguson had not such title at least as his guardian undertook to sell.

We do not perceive that there was any abuse of the discretion of the court in refusing to permit the amended answer and cross petition to be filed; bpt if there was, the error is not available in this court, for the reason that the paper copied by the clerk as the amended pleading is not made part of the record by any bill of exceptions or order of the court identifying it as that which was offered and rejected, the descriptive note of the clerk, for that purpose, being insufficient according to repeated decisions of this Court.

Wherefore, the judgment is affirmed.