Tn March5 1890, the defendant D. C. Kyle and his wife Joanna Kyle, vsold to plaintiff a certain tract or parcel of land situated in the city of Washington, this State, and conveyed the same by warranty deed. Shortly thereafter plaintiff sold said land to one J. S. Adams, and conveyed to him by warranty deed. In the year 1896, the
The sole question in the case is whether the debt which was merged into the judgment by confession was one contracted prior to the acquisition of such homestead, and hence, in virtue of section 2976 of the Code, enforcement of the judgment may be had by sale of the property under execution. This question the court below answered in the negative, and, we think, correctly so. It is not claimed that any fraud entered into the sale and conveyance to plaintiff in 1890. The defendant D. O. Kyle and his wife acted upon the belief that they were possessed of title to the lands conveyed. So, too, the facts respecting the acquisition of the title to the property now claimed as a homestead involve no element of bad faith. We need not consider, therefore, what might have been the effect upon the situation had fraud been tendered as an issue and proved upon trial. Now, as, Kyle and his wife were not in fact possessed of an indefeasible title to the lands conveyed to plaintiff, it may be conceded that a breach of the covenants in the deed occurred when de
That a remote or contingent liability attaches to the execution and delivery of a deed in view .of a possible failure of title is very true. But, as we have seen, the promise to repay or reimburse which arises out of a deed covenant has relation to the time when, if ever, such covenant shall be broken by eviction or otherwise. Such is quite a different thing from a specific debt contracted and agreed to be paid. And it is a debt contracted — that is, a fixed obligation, subject to enforcement by the processes of the law — that the statute authorizes to be satisfied by execution sale of a homestead. Our attention is called to the case of Benge’s Adm’r v. Bowling, 21 Ky. Law 165 (51 S. W. Rep. 151), where a contrary conclusion seems to have been reached. An examination of the opinion discloses that the holding was made to depend upon the express provisions of the Kentucky statute, which includes all forms of liability as well as contract debts. As in this case no debt enforceable in law or in equity arose in