Key v. Phelps

Decided December 16, 1868

Court of Appeals of Kentucky · decided 1868-12-16

Sales — Failure of Consideration — Fraud. A sale of land by one, believing he held a good title to the land, is not fraudulent, where the land was afterwards, by will disposed of, said will not being of record at the time of the sale. Same. The purchaser being put in possession of the land, using it for several year's, cannot claim a total failure of consideration and disregard the bond for title for a quit claim deed. Specific Performance — Sales—Bond for Title. Under a sale of land by bond for title, neither party being in fault as to the defective title, the vendee’s remedy is for a specific execution, and not for recovery of the consideration money.

Decided 1868-12-16

¶1Opinion of ti-ie Court by

Judge Williams:

¶2When Phelps sold by quit claim the laud to Key he doubtless believed he had the title aud so did Key, as no one had then propounded the will of Mrs. McITarous’ deceased father. Key was put into possession and enjoyed the land for several years, therefore, there was not a total failure of consideration to authorize a disregard of the bond for a quit claim deed, no such fraud shown as to make it void, and had there been, it would have been barred unless this had been discovered within five years before bringing the suit. There was no error in adjudging against the plaintiff’s *547right of recovery for the consideration money, and though the judgment for a specific execution seems entirely fruitless, yet this is the most appellant is entitled to. Judgment affirmed.

Bunch & See, for appellant.I. & J. Caldwell, B. H. Field, for appellee.