148 Ky. 610 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
On July 3, 1907, Susan Knight, a resident of Calloway County Kentucky, sold, and by deed of general warranty, conveyed tó B. F. and R. J. Schroader, 520 acres of land in that county, for $4,500. Shortly after the sale, she moved to New Mexico, where on the 16th of May, 1908, she died. In September following her death,
It appears from the evidence that there was included in this 520 acres, conveyed-by Susan Knight to appellees, 100 acres, ■ which had been owned by Thomas Knight, deceased, and she had no title to two-sixths of thi’s 100-aere tract. It further appears that a contract had been entered into with one Simeon Knight, through whom Susan Knight acquired her title to this property, by which Anna Knight and Pearl Knight, then infants under twenty-one years of age and owners of this two-sixths interest, obligated themselves, for a named consideration, to convey their undivided interest in said property, to Simeon Knight, upon reaching their ma
Ordinarily, an action cannot be maintained for a breach of warranty, where the vendee has been placed in possession by the vendor and there has been no eviction, but upon a showing that the vendor has been guilty of fraud, is about to remove his property from the State, is insolvent, or has himself become a non-resident, a suit upon a breach of warranty, where there has been no eviction, may be maintained. Merrifield v. Tyler, 8 Rep., 422; Little v. Bishop, 22 Rep., 1747; English v. Thomason, 82 Ky., 280.
A court of equity interferes for the purpose of preventing irreparable injury, which might otherwise result. Simpson v. Hawkins, 1 Dana, 303; Golden v. Maupin, 2 J. J. Mar., 236; Kyle’s Admr. v. Fauntleroy’s Admr., 9 B. M., 620; and Trumbo v. Lockridge, 4 Bush, 415.
In all such cases, where a litigant seeks relief of .this character, the proof must be clear and convincing that irreparable injury will result. It is not enough to show that injury may possibly result, or even will probably result.
Applying this test to the facts of the case at bar, if
Judgment reversed and cause remanded for further proceedings not inconsistent herewith.