October 1, 2012

Barber & Dick v. John H. Black, Pulaski, 1873

Barber & Dick v. John H. Black.

COURT OF APPEALS OF KENTUCKY

7 Ky. Op. 388; 1873 Ky. LEXIS 615

December 20, 1873, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM PULASKI CIRCUIT COURT. 

DISPOSITION: Judgment reversed and cause remanded. 

COUNSEL: Morrow, for appellants.

James, for appellee. 

JUDGES: Judge Peters. 

OPINION BY: Peters 

OPINION

 [*388]  Opinion by Judge Peters:

In the petition, no description is given of the land sought to be subjected to the payment of the debt except that it is situated in Pulaski County; not even the quantity is alleged. Reference is made to a deed which appellee made to appellant with a promise to file it; but it never was filed as an exhibit; and there is no statement in the petition by which it could be identified. A deed was lodged with the clerk, but it constituted no part of the pleading.

The petition should set forth the land sought to be sold; and the judgment pursuing the description given in the petition should enable the commissioner to identify the land he was ordered to sell without looking to any other paper. In so important a matter as  [*389]  the sale of real estate nothing should be left to conjecture, or to the discretion of a ministerial officer.

Wherefore, the judgment is reversed and the cause is remanded with directions for further proceedings consistent herewith. If appellee should in proper [**2]  time ask to amend his petition, he should be permitted to do so.

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