Outton v. Mitchell

7 Ky. 239 | Ky. Ct. App. | 1815

OPINION of the Court, by

Judge Owsiet.

This was a suit in chancery, brought by Mitchell in the court below for the purpose of subjecting a tract of land previously sold and conveyed by him to Outton, to the payment of the purchase money.

lt appears from the exhibits in the cause that previous to the commencement of the suit in the court below, Mitchell had obtained a judgment at law against Thomas Outton, one of the defendants in that court, for part of the purchase money ; and that Levi Outton, another defendant, purchased at a sheriff’s sale, made in virtue of an execution on that judgment, one moiety of the land sold by Mitchell, ana obtained a conveyance therefor from the sheriff. Notwithstanding this, however, the court below by their decree made the whole of the land subject to that part of^ the purchase money which re- ■ mains unpaid, and directed so much thereof to be sold as might be necessary for that purpose.

With respect to the merits of the decree, we are of opinion it cannot be sustained. Mitchell no doubt retained a lien upon the land for the purchase money, and on the failure of Outton to make payment it was perfectly correct to apply to a court of chancery for the purpose of subjecting the land to that demand$ but as part of th* land had been previously sold under an execution at the instance of Mitchell, to satisfy part of the same demand, it was unquestionably improper by a decree again to order a sale of that part.

g0 far, therefore, as the decree of the court below goes subject that part of the land purchased by Levi Outtoil under the execution to the payment of Mitchell’s demand, it is erroneous, and for that, cause must be reversed; but as the decree in every other respect is correct, the cause must be remanded to that court and a decree there entered conformable to this opinion.

The plaintiffs must recover their costs in this court.