Court of Appeals of Kentucky.
May 10, 1894.
Appeal from court of common pleas, Knox county.
"Not to be officially reported."
Action by John Conley against J. M. Bailey to recover the purchase money due on a contract of sale of land by plaintiff to defendant, in which defendant pleaded defective title, and his willingness to take the land on the exhibition by plaintiff of a perfect title. From a judgment rescinding the contract, defendant appeals.
In an action by the vendor of land for the price, where defendant, by reason of probable defects in the title, set up in his answer, requires plaintiff to exhibit his title, and avers his willingness to take the land if plaintiff exhibits a perfect title, the court should not rescind the contract, but should require plaintiff to exhibit such title as he has, and if defective, require him to perfect it if he can, and give him a reasonable time in which to do so.
When sued on the contract for the balance of the purchase money due on the land bought by him of the appellee, Conley, the appellant, Bailey, by reason of the probable defects in the title as set up in his answer, had the right to require of the appellee an exhibition of his title, and an exhibition of a perfect title. When he did so require, and averred his willingness to take the land if such an exhibit should be made, the court should not have rescinded the contract over his protest, but should have required the appellee to exhibit such title as he had, and, if defective, he should be given a reasonable time within which to perfect it, and should be required to perfect it if he can do so. It may be that, upon the exhibition being made, the appellant may accept the title without further objection; or, if the title be good save only as to a part of the land, the contract might still be enforced, such abatement from the purchase price being made as might be proper.
Judgment reversed, and cause remanded for proceedings consistent with this opinion.
BAILEY v. CONLEY.
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