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the requirements of section 51 of the Con- The punishment may have the appearance of stitution when the provisions of the act all being severe, but we are not inclined to relate to the same subject and are naturally say that it is clearly or manifestly cruel or connected and are not foreign to the sub- in contravention of the constitutional guarject expressed in the title. Williams v. Wed- anty relied upon and asserted by appellants. ding, 165 Ky. 361, 176 S. W. 1176, and au- Judgment affirmed. thorities therein cited. And, while it may be conceded that the title of the act in question does not mention the stealing of fowls,

ROBERTS v. BENNETT et al. still it cannot be said that such legislation is foreign to the subject expressed in the (Court of Appeals of Kentucky. Nov. 9, 1915.) title. Moreover, the contention now present- FRAUDS, STATUTE OF Ow110—CONTRACTS REed by appellants was settled in favor of the LATING TO LANDS-SUFFICIENCY. constitutionality of the act by this court in of his farm of 210 acres lying on a named turn

Plaintiff entered into a contract for the sale the case of Diamond v. Commonwealth, 124 pike. Plaintiff owned a farm in that vicinity of Ky. 418, 99 S. W. 232, 30 Ky. Law Rep. 655. over 300 acres, and there was no distinct parcel In that case, this same act was attacked be- of 210 acres. "Held, that while parol evidence is cause of the alleged defect in its title; and the description contained in the writing, it is in

admissible to show what tract of land covers the court held that there was a sufficient admissible to show the intention of the parties compliance with the requirements of section as to what part of a larger portion is to be con51 of the Constitution. We are not disposed yeyed, hence the contract is unenforceable un

der the statute of frauds. to recede from the position then taken.

[Ed. Note.-For other cases, see Frauds, Stat[2] 2. But appellants further contend that ute of, Cent. Dig. $8 225–236; Dec. Dig. en the act in question is violative of section 17110.]. of the Constitution, which prohibits the in

Appeal from Circuit Court; Henderson fliction of cruel punishments, it being ar

County. gued that a punishment of not less than one

Suit by R. R. Roberts against H. T. Benyear in the penitentiary for stealing fowls of the value of $2 or more is such as to nett and another. From a judgment for de

fendants, plaintiff appeals. Affirmed. contravene this constitutional provision. In Harper v. Commonwealth, 93 Ky. 290, 19 S. Montgomery Merritt and Yeaman & YeaW. 737, 14 Ky. Law Rep. 163, it was con- man, all of Henderson, for appellant. Clay tended that a statute imposed a cruel pun- & Clay, of Henderson, for appellees. ishment within the purview of the Constitution. This court said:

HANNAH, J. This is a suit to enforce the “And if it requires confinement in the peni-specific performance of a contract for the tentiary and disfranchisement to prevent or sale of land. The contract reads as follows: check the practice, the Legislature has the constitutional right and it is its duty, to enact such

"Henderson, Kentucky, March 12, 1913. This a law. That body is necessarily the judge of the agreement entered into between R. R. Roberts, adequacy

of the penalties necessary to prevent party of the first part, and Henry and Thos! crime. The court has no right to say that the Bennett, parties of the second part, witnesseth: crime. The court has no right to say that the We, Henry and Thos. Bennett, parties of the punishment is cruel and unconstitutional, un second part, agree to pay to Roberts, party of

, less it clearly and manifestly so appears."

the first part, seven thousand and five hundred Appellants devote a considerable portion dollars cash, and give him seven notes of $2,of their brief to a comparison of the punish- 228.57, due January 1st of each year, beginning ments prescribed by statute for other of January 1, 1914, bearing interest at 6% payable

semiannually, for his farm of 210 acres, more or fenses with that prescribed for the offense of less, on the Knoblick Pike. Said Roberts agrees stealing fowls of the value of $2 or more; to deed a driveway of twenty feet on north line but, as we view it, but little profit is de- of his farm; said second party to fence same. rived from a consideration of the matter of And Roberts further agrees to keep and care rived from a consideration of the matter of for farm, and to pay $1,000 rent for said farm, punishments upon that basis. Penal stat- and to give possession January 1, 1914. Said utes are enacted in an effort to discourage Roberts is to remove what cut posts he now has the perpetration of the offenses denounced on said farm. It is further agreed and undertherein. The punishment that will tend to stood that if parties of the second part fail to

The punishment that will tend to raise the cash payment of $7,500, then this deter, in respect of one crime, must neces- agreement is to be null and void. Said party of sarily differ from that which will deter in second part has hereby paid to said first party respect of another. The offenses of perjury, five dollars to bind this contract agreement. ” false swearing, subornation of perjury, grand

This was signed by all the parties menlarceny, and feloniously breaking into a tioned. warehouse, and others denounced by statute The Bennetts paid Roberts $1,000 on said may be considered of higher grade than that contract, and, failing to make further payof the stealing of fowls of the value of $2 ments, or to further carry out their part of or more, but that does not constitute good said contract, Roberts sued them for specific reason why the penalty for the latter should performance thereof. From a judgment in not be equal to the penalty for the other of- favor of the defendants, rescinding the confenses mentioned, if such a penalty is found tract and adjudging a return of the $1,000 to be necessary to deter persons from the so paid to him, the plaintiff appeals. commission of the offense of stealing fowls.' Only one of the defenses interposed by the

FROG ISLAND ROAD

R.R.

BARN

FARMHOUSE

defendants is here necessary to be consider-, claims were agreed to be sold to appellees, ed—that the contract, for want of a suffi- and appellees argue that this is fatal to the cient description of the lands intended to be contract. It appears, however, that that sold, is within the statute of frauds and road is the principal outlet from the 70 therefore unenforceable. At the time of the acres, the 20 acres, and the 69.72 acres on making of this contract, Roberts was the which the farmhouse and other buildings are owner of the lands shown upon the accom- located, being reached, as shown on the map, panying diagram, comprising 304.59 acres. by passing over a tributary road, known as This land was originally in three tracts. the Schuette Road, and so marked on the The tract of 70 acres he purchased from a map. man named Schuette. The remainder he de- A railroad crosses that corner of the 69.72 rived by the following conveyances: (1) A acres next to the 144.87 acres. These two deed from Wynne G. Dixon and wife to Ed-tracts touch only at a single point, and Robward Roberts, Eula Roberts, and R. R. Roberts has no writing granting him a passway erts, conveying two tracts, one of 89.72 acres, from the one to the other of these two tracts, and the other of 144.87 acres; (2) a deed though he claims that one of his remote venfrom Eula Roberts to R. R. Roberts, convey- dors had such a grant. ing her undivided interest in the lands men- The question is whether, under the cirtioned, Edward Roberts, uncle of Eula Rob- cumstances here shown, the description, "his erts, and R. R. Roberts, having died intestate farm of 210 acres more or less on the Knobleaving them his sole heirs at law.

lick Road,” is sufficiently definite to take the memorandum out of the statute. Waiving the fact that Roberts' land does not abut on the Knoblick Road, we still have the language “his farm of 210 acres,” and are con

fronted with the question whether this is 14487 ACRES

sufficient, when the vendor has in fact 304.59 acres at the place he claims is designated in the writing and offers to convey only 214.59 acres thereof. In Jones v. Tye, 93 Ky. 390,

20 S. W. 388, 14 Ky. Law Rep. 448, the writ6972 ACRES

ing involved was as follows:

Received of John S. Tye eighteen dollars, remainder of the payment of the purchase money on the land bought of Madison Jones adjoining the McKibly land. July 2, 1884. [Signed]

Madison Jones.” 20 ACRES

The court in that case said: 70 ACREŞ

"It is clear that the receipt in this case is not a sufficient memorandum of the sale to comply with the statute of frauds, because it fails to identify with reasonable certainty the land sold; and to allow the controversy as to the identity of the land to be settled by the mere weight of verbal testimony would, as it seems to us, de

feat the very object of the statute of frauds." KNOBLICK

In Wortham V. Stith, 66 S. W. 390, 23

Ky. Law Rep. 1882, the writing was: As has been seen, the language of the con

“Received of C. M. Wortham three hundred tract was “his farm of 210 acres, more or dollars in part payment of 115 acres of land, less, on the Knoblick Road.” Plaintiff offer- which I have this day sold him for $3,100,” etc. ed to convey to defendants 214.59 acres of

The court held that the writing was insufsaid 301.59 acres of land owned by him, and ficient to constitute a compliance with the undertakes to explain by parol evidence that requirements of the statute of frauds. the land intended to be sold was the 144.87

In Hyden v. Perkins, 119 Ky. 188, 83 S. W. acre tract, and that parcel of land marked 128, 26 Ky. Law Rep. 1099, the writing inon the map as 69.72 acres, it being a portion volved was: of the tract of 89.72 acres acquired by him “Received of Henry Hyden $20 first cash payas above set forth; that it was understood ment on farm of about twenty acres known as by the parties that there should be retained the ‘Vaught Farm,'” etc. by him, out of the 89.72-acre tract, that par- The court held that parol testimony could cel shown on the map as 20 acres, although be resorted to for the purpose of showing it was estimated at the time to contain 25 what farm was known as the “Vaught Farm,” acres; and that the two tracts sold would if there was but one so known and it concontain 210 acres, although upon a survey tained about 20 acres. The court further it was found that their combined acreage said: was 214.59 acres.

“But if there were two farms to which this It will be observed that none of Roberts description would equally apply, then parol

proof would be incompetent to show which of land abuts directly on the Knoblick Road, the two parties intended to designate. In

SCHUETTE ROAD

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writing is so uncertain that parol proof must, which particular 210 acres out of the 304.59 be admitted to show what the parties meant, as acres owned by appellant the parties meant between two or more things to which the descrip- by the language of the description contained tion given in the writing would equally apply, then the contract is within the statute." in the writing here involved. The writing

So in Winn v. Henry, 84 Ky. 48, 7 Ky. Law alone must be looked at to show this, and, Rep. 693, the court held sufficient a writing, it failing to do so, the contract was within

, describing the property as, "Silver Lake the statute, and invalid for want of a suffiPlace, near Washington, Kentucky, contain- cient description of the land, and the chaning 52 acres, more or less”; parol proof be- cellor was right in adjudging the rescission. ing admissible to show to what land this Wherefore the judgment is affirmed. description applied. And in Henderson v. Perkins, 94 Ky. 207, 21 S. W. 1035, 14 Ky. Law Rep. 782, a writing was held sufficient

COLE et al. v. COLLINS. which described the property as “my home (Court of Appeals of Kentucky. Nov. 10, 1915.) place and storehouse," and gave the seller's

1. EVIDENCE 260mCONSPIRATORS-DECLAname and residence.

RATIONS. In Bates v. Harris, 144 Ky. 399, 138 S. W. In a civil proceeding founded on conspiracy, 276, 36 L. R. A. (N. S.) 154, a writing was by the testimony of a conspirator before his

the conspiracy must be proved otherwise than held sufficient which described the land sold, acts and declarations are admissible against a as the vendor's "Muddy Creek Farm” stat- coconspirator. ing that "it embraces 113 acres," where the [Ed. Note. For other cases, see Evidence, vendor had such a farm on Muddy creek, Cent. Dig. $$ 1010–1012; Dec. Dig. Om 260.)

] although the vendor had in fact two farms 2. EVIDENCE Om253—DECLARATIONS BY CON

SPIRATORS. on that creek, but the other did not contain

Declarations of a conspirator made after 113 acres.

the purposes of the conspiracy are terminated In Brice v. Hays, 144 Ky. 535, 139 S. W. cannot be proved against a coconspirator. 810, the writing described the land as, "about [Ed. Note - For other cases, see Evidence, 150 acres of land near Otter Creek Station Cent. Dig. 88 994-1002; Dec. Dig. Om 253.]

. $$ about one mile north of Rineyville, Hardiu 3. DEEDS Ow211 – VALIDITY – FRAUDULENT

CONSPIRACY. county, Kentucky, on 1. C. R. R.," and the

In a proceeding to set aside a deed, etc., court held this description insufficient. based on a conspiracy between a real estate

In Nippolt v. Kammon, 39 Minn. 372, 40 agent and the vendee, held, that there was suffiN. W. 266, the writing contained the descripcient evidence, outside of the acts and declaration "five acres of lot 3, sec. 23, town 28, favor of the vendor.

. range 23.” The court said:

[Ed. Note.-For other cases, see Deeds, Cent. “No means are given by which to determine Dig. $$ 637–647; Dec. Dig. w211.] what five acres in lot 3 is intended. When such 4. APPEAL AND ERROR Om 1009 CHANCELan agreement contains sufficient elements of de

LOR'S FINDINGS-WEIGHT. scription, of course parol evidence may, and in

Where the evidence is conflicting, and the deed must, be resorted to, to apply the descrip-mind left in doubt, and it is not reasonably certion to the specific piece of land supposed to be tain that the chancellor has erred, the appellate intended ; in other words, to show that a spe- court will affirm his decision. cific piece_answers to the description in the writing. But the writing must be a guide to Error, Cent. Dig. 88 3970–3978; Dec. Dig. En

[Ed. Note. For other cases, see Appeal and find the land-must contain sufficient particulars

1009.] to point out and distinguish the piece from any other-so that when the description in the writ- Appeal from Circuit Court, Marshall ing is laid beside the description of a particular

County. piece, it may be seen with certainty that the latter was intended by the former.”

Suit by D, T. Collins against Charles Cole Other authorities to the same effect are and others. Judgment for plaintiff, and deMiller v. Campbell, 52 Ind. 125; Blankenship

fendants appeal. Affirmed. v. Spencer, 31 W. Va. 510, 7 S. E. 433; Oma- R. L. Shemwell, W. M. Reeder, and E. ha Loan & Trust Co. v. Goodman, 62 Neb. L. Cooper, all of Benton, for appellants. J. 197, 86 N. W. 1082; Grier v. Rhyne, 69 N. C. G. Lovett, J. E. Fisher, and Joe L. Price, all 346.

of Benton, for appellee. The rule deducible from these cases is that, while parol evidence is admissible to CLAY, C. D. T. Collins owned a farm conshow what tract of land answers to the de- sisting of about 166 acres in Marshall counscription contained in the writing, if there ty. He placed the farm in the hands of be such tract, it is not admissible to show Charles Cole a real estate dealer, and auwhat the parties intended or meant by the thorized him to sell it. He agreed to pay language of the writing. In other words, Cole all over $5,810 that he realized from had Roberts been the owner of a farm con- the sale of the farm. Cole sold the farm to taining about 210 acres, parol evidence Roy Houser, and on July 12, 1913, Collins would be admissible to show that fact, and executed a deed to the property. The purthus to show that that tract answers to the chase price was fixed at $6,500, to be paid as description contained in the writing; but follows: $1,000 on March 1, 1914; one note parol evidence is not admissible to show of $475, due and payable to the Bank of Benton; and five notes for $1,005 each, due order to get the money to pay something on and payable on March 1, 1915, March 1, 1916, the place. D. M. Karnes testified that he had March 1, 1917, March 1, 1918, and March 1, a conversation with Houser, in which he 1919, respectively, and bearing interest at asked Houser if Charlie Cole and he had not the rate of 6 per cent. per annum, payable acted shaky with the old man. Houser said, annually until paid. To secure the payment "No; I played fair and square.” Houser of the purchase money, a lien was retained further said, "Well, it was through ignorance on the land. At the same time Collins ex- by God we got them into it,” and also reecuted to Cole a note for $690 in payment of marked that, “The law don't excuse ignorCole's commission.

ance.” L. Gordon testified that Houser said On September 1, 1913, Collins brought two he did not know where the tobacco patch separate actions, one against Roy Houser was; that Mr. Cole told him to just buy the to set aside the deed in question on the farm and not return a word. He further ground of fraud and misrepresentation, and states that Houser told him that the old the other against Cole for the cancellation of man was not capable of attending to his the note on the ground that it was obtained business, and ought to have a guardian; that from him by fraud. Afterwards the two he could not read, and they ran it over him. cases were consolidated, and on final hear-0. T. Davis testified that shortly after the ing plaintiff was granted the relief asked. sale from Collins to Houser he began negoThe defendants appeal.

tiations with Cole for the purchase of the The particular fraud relied upon is the same tract of land. Cole stated that Houser failure of the deed to specify that the $475 had six years in which to pay for the farm, due the bank was to be paid before posses- and would not have to pay a dollar on it unsion was given, and to provide that upon de less he wanted to, and he would draw up fault in the payment of any one of the notes the notes the same way for Davis. all the notes should become due and collecti- According to the evidence for the defendble. It is further charged that Cole repre-ant, Collins was anxious to sell his farm. He sented that Houser was a well-to-do man and did not need the money, but wanted the incould pay for the farm. Collins says that terest to live on. It further appears that the agreement was that the $475 was to be two days after the sale in question was made paid when Houser returned to Benton, and to Houser Collins sold another tract of land, if any one of the notes was not paid at ma- through Cole as his agent, to one L. G. Harturity, all the other notes were to become due mon. Collins says that this deed was to be and collectible. He further says that Cole, written so that when one note became due who prepared the deed, read the deed as if they were all to become due. He further it contained the provision that all the notes stated that Mr. Harmon was willing for the were to become due if any one was not paid deed to be changed at any time. On introat maturity. He further says that Cole ducing Mr. Harmon, the latter stated that recommended Houser as being in good fix Cole asked Collins if he wanted the deed and able to pay for the place. A few days written so that all the notes would become after the trade was made he learned that the due if one became due and was unpaid, and deed did not contain any provision in regard Collins answered that he would not make to all the notes becoming due if any one of the deed any other way. The Harmon deed them was not paid. It further appears that referred to contains a provision to the effect Cole took Mr. Houser off once or twice, and that, if any one of the notes became due also Collins once or twice, and talked with and was not paid, all the notes would become them privately. It is also shown that Houser due. Cole denies that anything was said owned a tract of land worth about $1,000 about a provision in the deed with respect and $400 or $500 worth of personal property. to the maturity of all the notes in case one N. R. Estes, who was present when the trade became due and was not paid, and denies took place, says that Collins wanted $1,500 that he read the deed as if it contained such down when the land was sold. He also stat-provision. He further says that he made no ed that he wanted twelve months between representation as to Houser's ability to pay the notes, and, as he understood it, if one for the place, with the exception of the statenote fell due and was not paid, all the notes ment that Houser owned a small farm. Mr. became due. J. S. Rickman met Houser in Collins stated that he wanted the notes writPaducah, and says that Houser told him that ten so that he could collect the interest; that Charlie got him to go over there and buy he did not need the money, but wanted the the place so Charlie could get his commis- interest paid annually. Cole further says sion; that, if Charlie did not come clean that he acted merely as an agent to sell the with him, he was going on and keep the land, and that there was no fraud or conplace himself; that he had six years in spiracy whatever between him and Houser. which to pay for the place; and that, if he Houser also testified that Collins said that didn't want to pay for it, he could give it just so he got the interest was all he wanted. up Houser also said that he would buy all He did not tell Sam Rickman that he was of Marshall county if he could buy it at that buying the place for Charlie Cole, nor did rate. A man by the name of Faust testified he tell him that he would buy all of Mar

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He did meet Sam Rickman, but the latter payments would be precipitated if one of the had been drinking. A number of witnesses notes was not paid at maturity, it is appartestified that, while plaintiff's health was ent that there is some evidence tending to bad, he had sufficient mental capacity to at support the conclusion of the chancellor. tend to business.

Where, as in this case, the evidence is con[1-4] While it may be true, as a general flicting, and upon a consideration of the

a rule, that the acts and declarations of a co-whole case the mind is left in doubt, and it conspirator are not admissible as evidence cannot be said with any reasonable degree against his coconspirators until the con- of certainty that the chancellor has erred, it spiracy has first been established by evidence is our rule not to disturb his finding. Rawlother than the statements of a coconspira- ings v. Fish, 151 Ky. 764, 152 S. W. 941; City tor, and that the declarations of a cocon- of West Covington v. Dods, 152 Ky. 617, 153 spirator after the purpose of the conspiracy S. W. 964. has terminated cannot be proven against oth- Judgment affirmed. er conspirators (Metcalfe v. Conner, Litt. Sel. Cas. [16 Ky.] 497, 12 Am. Dec. 340; Sodusky v. McGee, 7 J. J. Marsh. 266; Shelby v. Commonwealth, 91 Ky. 571, 16 S. W. CARRICK et al. v. GARTH et al. 461, 13 Ky. Law Rep. 178; 8 Cyc. 680–682), (Court of Appeals of Kentucky. Nov. 10, 1915.) yet there are many other circumstances in the case tending to sustain the finding of 1. RAILROADS Ow97 — CROSSING HIGHWAY –

CHANGE OF LOCATION-NECESSARY PARTIES. the chancellor. Cole, being the agent of In an action to change the location of a plaintiff, sustained a confidential relation to highway so as to abolish a grade crossing over a him. In making the sale and drawing the railway right of way and relocate the crossing deed, it was his duty to act in good faith. at a point where it would cross the right of way The evidence shows that Houser, before mak- is a necessary party.

by an overhead crossing, the railroad company ing the purchase, made but a slight examina

[Ed. Note. For other cases, see Railroads, tion of the farm. It is also shown that Hous-Cent. Dig. $$ 297–304; Dec. Dig. Om97.] er owned but little property, and this was 2. APPEAL AND ERROR O 882—INVITED ERprobably exempt. Plaintiff and N. R. Estes

ROR-PARTIES. both say that the agreement was that, if Where one party demurs to the petition on one of the notes was not paid at maturity, the ground that a necessary party is not made a all the notes were to become due. Plaintiff party to the action by it, he is estopped from further says that the deed was read as if it afterwards alleging error in joining such party,

as the error, if any, is invited. contained such a provision. As written, the

[Ed. Note. For other cases, see Appeal and deed places plaintiff in the position where he Error, Cent. Dig. 88 3591-3610; Dec. Dig. Om would either have to wait until all the pur- 882:] chase money became due, or, in case the 3. HIGHWAYS 72 – ALTERATION - APPEAL

em

· farm could be divided without materially im- TO CIRCUIT COURT_TRIAL DE Novo. pairing its value, enforce the payment of the Under Ky. St. 1909, § 4303, providing that different notes by separate sales of small in proceedings to change a highway any person portions of the farm. While it may be true aggrieved may appeal from the county court to

While it may be true the circuit court, where the trial shall be de that in the hurry of closing a transaction the novo, where on remonstrants' appeal to the cirparties might omit to put in a deed a pro- cuit court, the trial was held de novo, and evvision to the effect that, if one of the notes ery material issue of fact was submitted to the should not be paid on maturity, all the notes tions of law, the objection that the court erro

jury under proper instructions covering all quesshould become due, yet neither Houser norneously ignored the commissioners' report and Cole now claims that such provision was not remonstrants' exceptions thereto, and tried the put in the deed because the parties over-case as if it were an ordinary action in the looked it. They are both insisting that the circuit court, is untenable. deed as written expresses the agreement be

[Ed. Note.-For other cases, see Highways, tween the parties. That Cole was cognizant

Cent. Dig. $8 239–252; Dec. Dig. Omw 72.] of the effect of the deed as written is clearly 4. HIGHWAYS Cm72 – ALTERATION PROCEEDshown by his attempt to induce 0. T. Davis

INGS-APPEAL-RECORD-CORRECTION OF ER

RORS. to purchase the same property by telling him

It is not error for the court on appeal to how the notes were drawn to Collins, and correct a patent clerical error in the record of that, if Davis would buy the farm, his notes the proceedings before the board of commissionwould be executed in the same way.

Con-ers, from whom the case is appealed. sidering the fact that Houser made no care

[Ed. Note. For other cases, see Highways, ful examination of the farm, that his means Cent. Dig. 88 239-252; Dec. Dig. Om72.] were entirely insufficient to pay for it, that 5. TRIAL Om 260 — REQUESTED INSTRUCTIONS. Cole had a large commission at stake, that Where the instructions in a cause fully and the deed was drawn in such favorable terms, fairly present to the jury every material issue of and it is not now claimed that this was the no error is presented by the court's refusal to

fact necessary to a correct decision of the case, result of any mistake on the part of Cole give requested instructions. in drawing the deed, and that Collins claims

[Ed. Note. For other cases, see Trial, Cent. that the deed was read as if all the deferred Dig. SS 651-659; Dec. Dig. Om 260.]

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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