Haynes v. Ditto , 1868 Ky. LEXIS 269 ( 1868 )

Opinion of the Court by

Judge Robertson:

The admitted assumpsit by the appellant, W. W. Haynes, being an undertaking to pay his own debt is not within the range of the statute of frauds and perjuries, and is, therefore, enforcible without writing.

Moreover, acocrding to the vague pleadings, the vendor Nichols bad a right to bold the legal title until bis obligors or their assignee paid the notes, and, whatever interest W. W. Haynes may have acquired in the land, it is subsequent and subordinate to that lien, and be cannot obtain the title or prevent an enforcement of the lien for the purchase money unless it shall be paid.

There is, therefore, an apparent right to sell the land for satisfying the debt on it. But the decree for a sale was premature and improvident. A chancellor should never subject land to danger of sacrifice by selling an uncertain interest, but always ought to have the interest ascertained and defined, and be able to pass to the purchaser a perfect title and not leave him to future litigation for perfecting it. W. W. Haynes having denied that a good title could be made, the litigation on that question ought to have been settled before a sale, and not left, as it is by the decree, for ulterior consideration and adjustment after the sale. The decree in this respect was erroneous, and, for this cause alone, must be reversed.

Cofer, for appellant. Walker, for appellee.

Wherefore, the judgment is reversed, and the canse remanded for further proceeding.