Phillips v. Breck's ex'r
Court of Appeals of Kentucky
Case 95 — EQUITY APPEAL FROM LEE CIRCUIT COURT. Appellee’s pleadings show title in the testator at the time of his death, and failed to show title either in his executor, or devisees, or heirs at law. It was error to render judgment for the sale of the land. (3 Bush, 187.) 1. No error was committed by the court to the prejudice of appellant. 2. The court ordered appellee to make decedent’s devisees parties against his protest.
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Case 95 — EQUITY APPEAL FROM LEE CIRCUIT COURT. Appellee’s pleadings show title in the testator at the time of his death, and failed to show title either in his executor, or devisees, or heirs at law. It was error to render judgment for the sale of the land. (3 Bush, 187.) 1. No error was committed by the court to the prejudice of appellant. 2. The court ordered appellee to make decedent’s devisees parties against his protest. Appellee contends that the will gave the executor ample power to convey the land. (Judge Breck’s will, p. 38.)
1Opinion of the Court
JUDGE HARGIS
delivered the opinion op the court.
In none of the pleadings filed by the executor, heirs, or devisees is it alleged that the title to the “Yellow Rock” tract of land is in the devisees of Daniel Breck, deceased.
The right of action was in the executor for whatever sum the appellant may be indebted to his testator for the lands sold by the latter to him, and for which the appellant holds the bond of the testator for title. But it was not necessary or proper that he should aver he was able and willing to convey the title which his testator had covenanted to convey, for the manifest…
2Cases cited1 opinion
- Calvin v. DuncanCourt of Appeals of Kentucky · 1876
3Cited by1 opinion
- Tranter v. HibbardCourt of Appeals of Kentucky · 1900