Elliott v. Finch's Admr. , 1868 Ky. LEXIS 407 ( 1868 )

Opinion ok the Court by

Judge Peters:

Although, the action was brought in ordinary, and the collection of the debt sought to be coerced by attachment, afterwards it was transferred to equity. And by an amended petition a lien was claimed on a tract of land for the debt, and its enforcement sought to satisfy the same; but it is not alleged in any of the- pleadings, that appellant, who is the vendor, had made to his vendees a title to the land contracted' to be sold to them, nor that he was able, willing, and had offered to make the conveyance. He was not, therefore, entitled to the relief sought, as has been repeatedly decided by this court by an enforcement of his lien and a sale of the land. But if the petition had contained the necessary allegations it appears in the record that he had no such title to the land, as his vendee was bound to accept. A considerable part of the purchase price was due and unpaid to the vendor, and besides he had further incumbered it'with a mortgage for a large debt, comparatively to the value of the land, and while it may be true that appellant’s .vendees owed him more than enough purchase money to pay the mortgage and remove all liens, still it was not their duty to hunt up his creditors, and negotiate and satisfy their claims, and afterwards adjust them with him, with or without litigation as the parties might,'or not, agree.- No error is, therefore, perceived in setting aside the contract of sale. But it appears that appellees took possession of the lands and mills very soon after they purchased, in the summer of 1859, and retained them until the rendition of the judgment complained of; indeed, it is not shown that they have not the possesison even at this time, and by the judgment they are not required to account for rents, use,' waste or profits, for any time that they had the use of the property. Appellant' sought by motion to have a receiver appointed to take charge of the property, but his lUotion was at first successfully resisted, and although at a later period upon a renewal of the motion, it prevailed, yet it does not appear that the purchasers surrendered it to the receiver.

Upon the recission of -the contract the parties should be placed as nearly in statu quo as they can be, and in order to do that, appellees should have been required to account for rents and profits, and for waste committed while they retained possession of the property, and been allowed for all permanent, and lasting improvements made by them to tbe extent of ameliorations at tbe time the premises were returned.

Bullock, for appellant.

For tbe failure to take an account between tbe parties as herein suggested tbe judgment is reversed, and tbe cáuse remanded for further proceedings in accordance herewith.