October 10, 2012

Mullins v. Johnson, Laurel, 1899


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52 S.W. 843; 1899 Ky. LEXIS 341; 21 Ky. L. Rptr. 633

September 27, 1899, Decided


Appeal from circuit court, Laurel county.

Action by E. H. Johnson against John W. Mullins to enforce a lien, upon land. Judgment for plaintiff, and defendant appeals.


COUNSEL: Chas. E. Brock and Tinsley & Faulkner, for appellant.

H. C. Eversale, Hazelwood & Parker, and Stillings & Johnson, for appellee.




 [*848]  GUFFY, J. The appellee, Johnson, instituted this action in the 'Laurel circuit court, seeking, to obtain a judgment against the appellant, Mullins, for a certain sum of money, and claiming a lien therefor upon a certain tract of land. The appellee claimed to be the assignee of certain notes due S. F. Jackson, administratrix of Dora Jackson, who, it is alleged, held certain notes executed to Henry and Susan E. Magee, for the sum therein named. The court below rendered judgment in favor of appellee against the appellant for the several sums claimed, and from that judgment this appeal is prosecuted.

It is insisted for appellant that the petition is not sufficient to support the judgment, and that the court below erred in not setting aside the judgment and allowing the appellant to file his answer. It will be, seen from the record, that a demurrer had been sustained to the petition  [**2] as amended, and appellee again amended his petition, and that afterwards the judgment was rendered, and at the same term appellant asked that the judgment be set aside and he be allowed to answer. The answer tendered seems to have presented a valid defense to the action, and, taking into consideration the state of the pleadings, the court should have set aside the judgment and allowed the answer to be filed. The judgment is therefore reversed, and the cause remanded, with directions to set aside the judgment and allow the answer to be filed.

It may, however, be proper to say that, if the party who has the legal title to the land in controversy has obligated himself to convey the land, he should, upon proper pleadings, be required to do so, and, if it appears that the vendors of the land are able to make a good title to the same, they should be adjudged to do so; and in that event the appellee would be entitled to a judgment for his debt, and for an enforcement of a lien upon the land in controversy to satisfy the same. Upon the return of the cause all parties should be allowed to amend their pleadings, to the end that justice may be done in the case. Cause remanded for proceedings consistent  [**3] with this opinion.

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