Noel v. Arnold's Exor. , 1868 Ky. LEXIS 553 ( 1868 )

Opinion oe the Court by

Judge Williams:

Whatever may have been the defect of the original petition as a suit to enforce a vendor’s lien it was good as a suit to recover the amount of the notes due and unpaid.

The answer and cross-petition set out that tbe consideration for these notes was the sale and purchase of land and exhibited the vendor’s title bond, which describes the notes sued on, and some not due at the bringing of the original suit, and which bond shows that the title was to he made when the entire purchase price was paid. This cross-petition nought a perfect title or a rescission of the contract. Plaintiff subsequently filed amended petition, making the vendor’s and testator’s heirs at law parties and showing a perfect title. The cause was transferred to the equity docket on defendant’s motion. The amended petition averred that the notes last due were for unpaid purchase price for land and that a lien existed therefor, but, by oversight no such averment was made as to the notes originally sued on, yet, the facts set out in the defendant’s answer; and cross-petition together with the title bond exhibited by him clearly show that there was a vendor’s lien as to all the notes, and no waiver of said lien is averred or shown, therefore, we think the defect in the original petition was cured by the subsequent pleadings, at least after judgment, it will not be beard tbe first time, as an obligation to enforcing tbe lien, especially as tbe plaintiff in bis amended petition sets out said notes and when they will be due and asks judgment tbereon and wbicb appellant in bis response thereto conceeds as to tbe description, but objects to judgment not because tbe notes were not due, but because be was seeking a rescission of tbe contract, and as tbe litigation continued for several years after tbe notes were all due and as we approve of tbe refusal to rescind, we will not reverse upon this mere tecbnical ground under these issues. As a perfect title was manifested and no error shown in tbe allowing of credits, no substantial error, to appellant’s prejudice, is perceived as to tbe judgment. Tbe direction to tbe commissioner as to advertising and selling was certain to a common intent and in tbe absence of proof we will presume be advertised in tbe vicinity of tbe land, especially as be reports a compliance with tbe judgment, wbicb required notice to be placed at tbe court bouse door and three other public places in tbe county. Judgment affirmed.

Landram, for appellant. Craddochj for appellee.