Sterman v. Thornton , 3 Ky. L. Rptr. 540 ( 1882 )

Opinion by

Judge Hargis:

The $240 note was executed by Bailey and wife for the lot conveyed to Eliza Jane Bailey January 25, 1870. On January 1, 1873, the contract was rescinded, and the lot, not having been paid for, was reconveyed by Bailey and wife to the appellee, H. El. Thornton, at the estimated value of $340, $240 of which was part of the consideration for a lot which appellee conveyed to Bailey at the same time for $1,040. Bailey executed his promissory note for $800 and appellee held the $240 note, which constituted together the consideration for the last lot.

Therefore the $240 was not a lien upon the lot first sold and conveyed to Mrs. Bailey, but it is a lien on the last lot unless it has been paid or to the extent it remains unpaid. Thornton could not receive the first lot in payment for the second lot and enforce a lien on the first for the $240 because the rescission can-celled and released the lien. The amended answer pleads the facts and is good.

Wherefore the judgment is reversed and cause remanded for further proceedings.