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Prewit vs. Kenton, &c.
COURT OF APPEALS OF KENTUCKY
6 Ky. 280; 1814 Ky. LEXIS 32; 3 Bibb 280
April 11, 1814, Decided
DISPOSITION: [**1] Decree reversed and set aside, and cause remanded.
JUDGES: Ch. J. BOYLE.
OPINION BY: BOYLE
OPINION
[*280] OPINION of the Court, by Ch. J. BOYLE.--Kenton sold to Clark, Quirk's pre-emption of 400 acres, and agreed to procure an assignment to him from Quirk. Clark afterwards, on the 10th of December 1784, sold the land to Prewit for 350l. for which Prewit gave his bond payable the 1st of December following, and received from Clark an obligation to convey. Kenton procured the assignment from Quirk to Clark, and the latter conveyed by deed with general warranty to Prewit. [*281] Some years after, Clark having died, his administrator assigned the bond upon Prewit to Kenton, upon which suit has been brought and judgment recovered.
To injoin proceeding upon the judgment Prewit filed his bill, making Kenton and Clark's administrator and heirs defendants. The grounds alleged for relief are--1st, That after he had made his purchase, discovering that Kenton had another entry upon the same land, he remonstrated with Clark upon the subject, who thereupon procured from Kenton a bond to assign the entry, which Clark transferred to him, but Kenton has never made the assignment. 2d, That Stewart's heirs, [**2] having an adverse claim to a part of the land, instituted suit against him, which was referred to arbitrators, and that an award and decree in pursuance thereto were pronounced against him for 144 acres. And 3d, That he had made sundry payments upon the bond for the purchase money, for which he had not been allowed a credit.
The court below dismissed the bill with costs, and Prewit has appealed to this court.
With respect to the first ground upon which relief is sought, it is admitted that Kenton gave the bond to assign the entry interfering with Quirk's pre-emption, and that he has not made the assignment. But the plain object of the transaction was to secure Prewit from being harrassed or having his land taken by that claim. This object, notwithstanding the failure of Kenton to make the assignment, has in effect been attained: for neither Kenton nor any one claiming the entry has ever set up a title under it; and as it sufficiently appears never to have been surveyed, the right by operation of law has become extinct and cannot be resuscitated. Besides, it does not appear that Kenton received any new or additional consideration for the assignment of the entry in question: indeed [**3] the contrary is clearly inferable from the record, and no special injury is alleged to have accrued to Prewit from Kenton's failure to make the assignment. Under these circumstances nominal damages only could be recovered in an action at law upon the bond; and in such case a court of equity ought not to interpose, especially where as in this instance there is a clear and adequate remedy at law. [*282] The second ground upon which relief is sought, we think equally untenable. It was settled in the case of Booker vs. Bell, (ante, p. 175) that to entitle the vendee to recover upon the covenant of warranty, he must shew an eviction by a paramount title; and that a judgment of eviction in a suit to which the vendor was not a party, and of the pendency of which he had no notice, was no evidence against him that the eviction was had under such a title. If this doctrine be correct with respect to a judgment of a court obtained in the ordinary course of legal proceeding, without the intervention of arbitrators, much more must it be so with regard to a judgment had upon the award of arbitrators chosen by the vendee and the adverse claimant, without the knowledge or consent of the vendor. [**4] To suppose in such a case the decision to be obligatory upon the vendor, would be wholly unwarranted by any rule of law or principle of natural justice. We are not, however, to be understood as deciding that the vendee cannot in any case of eviction by a judgment or decree in pursuance of the award of arbitrators, recover an indemnity against the vendor. But it is clear that to enable him to do so where the vendor has not been a party to the record, he must shew that the eviction is such an one as the law would have pronounced, or in other words that the right of the adverse claimant was paramount to that under which he claimed. In the present case this has not been done. The record does not furnish such evidence of the conflicting titles as to enable the court to decide upon their comparative merits.
Upon the third ground we are of opinion the court below erred in not sustaining the bill. Payments to a considerable amount are credited upon the judgment at law, but there appears to have been others made by Prewit, for which he has not been allowed a credit. As the payments have been made at sundry times and in sums of various size, convenience requires that a commissioner should be [**5] appointed for their adjustment. When adjusted, the injunction should be made perpetual for the amount beyond what has been credited upon the judgment at law, and dissolved for the residue of the judgment unpaid, with ten per cent. damages.
It is therefore decreed and ordered that the decree of the Lincoln circuit court be reversed and set aside, [*283] and that the cause be remanded to that court, in order that a decree may be there entered conformably to the foregoing opinion.
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