
    CASE 2 — PETITION EQUITY
    JUNE 6.
    Kelly vs. Kelly.
    APPEAL PROM ESTILL COUNTY COURT.
    1. The fact the vendor of land is insolvent, and has no title to the land, is sufficient ground for enjoining a judgment against the vendee on his note for the purchase money, although the time for conveying the land may not have arrived.
    
      2. Where a judgment on a note given for land is rendered by the quarterly court, a petition for an injunction must be filed in that court. (Civ. Code, sec. 314.) And as the case would involve the title to land, it should be transferred to the circuit court. (Civ. Code, sec. 25.)
    3. Even if a petition for the mere purpose of executing or rescinding a contract for land might be deemed premature, yet if it shows a present equity for an injunction, and a probable ground for the future action of the court in behalf of the plaintiff, a demurrer to it should not be sustained.
    S. Turner, for appellant,
    cited 14 B. Mon., 157; Civ. Code, secs. 314, 25.
   CHIEF JUSTICE MARSHALL

delivered the opinion oe the court:

As the petition of S. B. Kelly alleges that H. B. Kelly has no title to the land for which the note on which the judgment was rendered had been executed; and also alleges that said H. B. Kelly is insolvent, there is equitable ground for suspending the coercion of that judgment by injunction, although the time for conveying the land has not yet arrived. And as the judgment on the note was rendered by the quarterly court, and by section 314 of the Code it could be enjoined by no other court, it was proper to file the petition and obtain the order for injunction in that court; and the fact that the case on the petition involves the title to land, which, by section 25 of the Code, is not to be affected by any judgment of the quarterly court, made it proper that the case should be transferred to the circuit court.

Thus far, therefore, there was no error in the proceeding. But, as already said, the petition contains equitable ground for an injunction, temporary at least; and although the prayer that the contract be specifically executed if the defendant has title, or that if he has no sufficient title it be rescinded, cannot at once be granted, it may be understood as referring to the period which will come during the present year, when, according to the terms of the contract, it should be completely executed by full payment on the one side, and the conveyance of a good title on the other.

Even if the petition for the mere purpose of an execution or rescission of the contract might be regarded as premature, yet, as it shows a present equity for an injunction, as well as a probable ground for the future action of the court in behalf of the plaintiff, we are of opinion that the circuit court erred in sustaining the demurrer to it.

Wherefore, the judgment is reversed, and the cause remanded with directions to overrule the demurrer to the petition, and for further proceedings not inconsistent with this opinion.  