158 Ky. 793 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing
On August 13, 1913, J. F. Prewitt instituted this action in the Whitley Circuit Court against T. Y. Baird' and Mrs. T. Y. Baird, to enforce a lien for purchase money, upon a certain tract of land in Whitley County, which by a contract entered into between him and T. Y. Baird on February 24, 1911, he sold and agreed to convey to Baird in consideration of the sum of thirty-nine hundred dollars, of which five hundred dollars was paid in cash at the time of the execution of the contract, the remainder of the consideration being evidenced by notes.
On October 23, 1913, a motion for a rule to require him to do so having been entered by the defendant, the plaintiff for the first time signed the petition, signature thereof by either plaintiff or his attorney having-been theretofore omitted. ■
‘ ‘ This causé being submitted to the court on the general demurrer to the petition of the plaintiff, and the court being advised, overruled said demurrer, to which the defendants at the time excepted and objected. Thereupon the defendants moved the court to continue the case and allow them to file their defense to the petition, and the court after considering said motion for a continuance, and being advised, overruled same, to which defendant at the time objected and excepted; and directed that judgment go against the defendants for the amount sued for, to which the defendants also objected and excepted at the time. It is ordered and adjudged by the court, etc. ’ ’
Section 115 of the Civil Code requires that pleadings must be signed by the parties who file them or by their attorney; and the petition was defective, but not fatally so. It was still a petition, and the failure to sign it could be remedied, and when remedied related back to the date of the filing thereof so far as.it affects the question of requiring an answer to be filed at that term of the court.
In City of Dayton v. Hirth, 121 Ky., 43, 27 R., 1209, 87 S. W., 1136, it was held that notwithstanding a failure to verify the petition, the action was pending from the date of the filing thereof and issual of summons thereon. By analogy, if the petition is unsigned, the action is nevertheless pending from the filing thereof and issual of summons thereon, although an answer is not due until the petition is so signed.
In an action to enforce a vendor’s lien, the petition must set forth the terms of the contract in full or in substance ; if conveyance has been made in accordance with the contract, that fact should be stated; if conveyance has not been made,' the plaintiff must allege his ability and readiness to so convey. Jefferson’s Admr. v. Wilson, 4 R., 626; Saunders v. Saunders, 4 R., 626; Barnes v. Bennett, 5 R., 865; Bullock v. Graham, 87 Ky., 120, 9 R., 1004, 7 S. W., 889; Moore v. Moxley’s Admr., 19 R., 160, 39 S. W., 420; Bybee v. Smith, 88 Ky., 648, 11 S. W., 722, 11 R., 163. The petition fails to make this essential allegation of conveyance, or readiness and ability to convey according to the terms of the contract.
In Sears v. Henry, 13 Bush, 413, this court said:
“We do not construe this section as requiring allegation to be made in the pleading to the effect that the property is divisible or indivisible. If the court is satisfied from the character of the boundary, or the number of acres in the tract as described in the pleadings, that a division can be had of the land, it is all that is required.”
This same observation applies to the existence of other liens upon the property sought to be subjected. Section 694 of the Civil Code provides that the plaintiff in an action to enforce a lien on real property, shall state in his petition the liens, if any, which are held thereon by others. The better practice, where there are no other liens known to the plaintiff, is to state that fact in the petition. The petition herein fails to do this.
The description contained in the contract filed with the petition, is as follows: “A certain tract of land situated and being in Whitley County, Kentucky, about one mile northeast of Williamsburg, and for a full and complete description of same, reference is hereby made to a deed of conveyance from E. S. Davis and others to said Prewitt, which deed is recorded in the clerk’s office of the Whitley County Court in Deed Book 59, at page 412, excepting from said boundary two acres of land heretofore sold by me to Cecil' Prewitt, and which said two acres has heretofore been surveyed and set apart to him.”
The description of the land in the petition is sufficient to uphold the contract, but it is not sufficient to support a judgment subjecting the land to the satisfaction of a lien for purchase money. The petition should contain a description of the property sufficiently definite to enable the court to render judgment without reference to any paper not made a part of the record; and the exclu
The judgment is reversed and cause remanded for proceedings consistent with this opinion.