45 Ky. 222 | Ky. Ct. App. | 1845
delivered the opinion of the Court.
This is a bill in chancery, instituted by Beckwith, to rescind an executory contract for land, made with Jacob Kouns. Kouns and the assignee of the notes for the consideration, resist the rescission and ask an enforcement of the contract.
There is no plausible foundation for the decree in this case. No derivation of title from the Commonwealth, is shown, nor has possession for a sufficient length of lime, been proven, to create the presumption of title. A vendor cannot enforce specifically, a contract of sale, upon an executory contract, without showing a good title, and the title in this case is required to be exhibited, and if good title is not shown upon the hearing in the general, the Chancellor will rescind the contract. Again; the notes for the purchase money were to be void in case the vendor, Kouns, had conveyed or mortgaged the land to any other, and it appears that before he sold the land to Beckwith, he had caused MeKeane to convey the same land to his brother, John C. Kouns. And it appears further, that there is an admission in the contract of purchase, that the bond upon MeKeane had been assigned to Jouitt, and a covenant in the contract of sale to Beck-with, to procure Jouitt to release the assignment to him.
No such release has been procured. It is true John C. Kouns comes forward and interpleads, resisting the payment of the money to the assignee of Beckwith’s notes
The decree is reversed and cause remanded, that the contract between Jacob Kouns and Beckwith may be can-celled and annulled, and the injunction perpetuated against the judgment at law, and Beckwith and his sureties released and discharged from the payment of the other note which is alledged to be lost, and the defendants be decreed to pay costs. And the plaintiff in error is entitled to his costs in this Court,