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say that it is clearly or manifestly cruel or in contravention of the constitutional guaranty relied upon and asserted by appellants. Judgment affirmed.

ROBERTS v. BENNETT et al.
(Court of Appeals of Kentucky. Nov. 9, 1915.)
FRAUDS, STATUTE OF 110-CONTRACTS RE-
LATING TO LANDS-SUFFICIENCY.

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 connected and are not foreign to the subject expressed in the title. Williams v. Wedding, 165 Ky. 361, 176 S. W. 1176, and authorities therein cited. And, while it may be conceded that the title of the act in question does not mention the stealing of fowls, still it cannot be said that such legislation is foreign to the subject expressed in the title. Moreover, the contention now presented by appellants was settled in favor of the constitutionality of the act by this court in the case of Diamond v. Commonwealth, 124 Ky. 418, 99 S. W. 232, 30 Ky. Law Rep. 655. In that case, this same act was attacked because of the alleged defect in its title; and the court held that there was a sufficient compliance with the requirements of section 51 of the Constitution. We are not disposed to recede from the position then taken.

[2] 2. But appellants further contend that the act in question is violative of section 17 of the Constitution, which prohibits the infliction of cruel punishments, it being argued that a punishment of not less than one

year in the penitentiary for stealing fowls of the value of $2 or more is such as to contravene this constitutional provision. In Harper v. Commonwealth, 93 Ky. 290, 19 S. W. 737, 14 Ky. Law Rep. 163, it was contended that a statute imposed a cruel punishment within the purview of the Constitution. This court said:

"And if it requires confinement in the penitentiary and disfranchisement to prevent or check the practice, the Legislature has the constitutional right and it is its duty, to enact such a law. That body is necessarily the judge of the adequacy of the penalties necessary to prevent crime. The court has no right to say that the punishment is cruel and unconstitutional, unless it clearly and manifestly so appears."

Plaintiff entered into a contract for the sale

of his farm of 210 acres lying on a named turnpike. Plaintiff owned a farm in that vicinity of over 300 acres, and there was no distinct parcel of 210 acres. Held, that while parol evidence is admissible to show what tract of land covers the description contained in the writing, it is inadmissible to show the intention of the parties as to what part of a larger portion is to be conveyed, hence the contract is unenforceable under the statute of frauds:

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dec. Dig. 110.]

Appeal from Circuit Court; Henderson County.

Suit by R. R. Roberts against H. T. Bennett and another. From a judgment for defendants, plaintiff appeals. Affirmed. Montgomery Merritt and Yeaman & Yeaman, all of Henderson, for appellant. & Clay, of Henderson, for appellees.

Clay

HANNAH, J. This is a suit to enforce the specific performance of a contract for the sale of land. The contract reads as follows:

"Henderson, Kentucky, March 12, 1913. This agreement entered into between R. R. Roberts, Bennett, parties of the second part, witnesseth: party of the first part, and Henry and Thos. We, Henry and Thos. Bennett, parties of the second part, agree to pay to Roberts, party of the first part, seven thousand and five hundred dollars cash, and give him seven notes of $2,228.57, due January 1st of each year, beginning January 1, 1914, bearing interest at 6% payable semiannually, for his farm of 210 acres, more or less, on the Knoblick Pike. Said Roberts agrees to deed a driveway of twenty feet on north line of his farm; said second party to fence same. for farm, and to pay $1,000 rent for said farm, And Roberts further agrees to keep and care and to give possession January 1, 1914. Said Roberts is to remove what cut posts he now has on said farm. It is further agreed and underraise the cash payment of $7,500, then this stood that if parties of the second part fail to agreement is to be null and void. Said party of second part has hereby paid to said first party five dollars to bind this contract agreement.”

Appellants devote a considerable portion of their brief to a comparison of the punishments prescribed by statute for other offenses with that prescribed for the offense of stealing fowls of the value of $2 or more; but, as we view it, but little profit is derived from a consideration of the matter of punishments upon that basis. Penal statutes are enacted in an effort to discourage the perpetration of the offenses denounced therein. The punishment that will tend to deter, in respect of one crime, must necessarily differ from that which will deter in respect of another. The offenses of perjury, false swearing, subornation of perjury, grand larceny, and feloniously breaking into a warehouse, and others denounced by statute may be considered of higher grade than that of the stealing of fowls of the value of $2 or more, but that does not constitute good reason why the penalty for the latter should not be equal to the penalty for the other offenses mentioned, if such a penalty is found to be necessary to deter persons from the commission of the offense of stealing fowls. Only one of the defenses interposed by the

This was signed by all the parties mentioned.

The Bennetts paid Roberts $1,000 on said contract, and, failing to make further payments, or to further carry out their part of said contract, Roberts sued them for specific performance thereof. From a judgment in favor of the defendants, rescinding the contract and adjudging a return of the $1,000 so paid to him, the plaintiff appeals.

map.

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 man named Schuette. The remainder he derived by the following conveyances: (1) A deed from Wynne G. Dixon and wife to Edward Roberts, Eula Roberts, and R. R. Roberts, conveying two tracts, one of 89.72 acres, and the other of 144.87 acres; (2) a deed from Eula Roberts to R. R. Roberts, conveying her undivided interest in the lands mentioned, Edward Roberts, uncle of Eula Roberts, and R. R. Roberts, having died intestate leaving them his sole heirs at law.

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A railroad crosses that corner of the 69.72 acres next to the 144.87 acres. These two tracts touch only at a single point, and Roberts has no writing granting him a passway from the one to the other of these two tracts, though he claims that one of his remote vendors had such a grant.

The question is whether, under the circumstances here shown, the description, “his farm of 210 acres more or less on the Knoblick 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 confronted with the question whether this is 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 writing involved was as follows:

As has been seen, the language of the contract was "his farm of 210 acres, more or less, on the Knoblick Road." Plaintiff offered to convey to defendants 214.59 acres of said 304.59 acres of land owned by him, and undertakes to explain by parol evidence that the land intended to be sold was the 144.87acre tract, and that parcel of land marked on the map as 69.72 acres, it being a portion of the tract of 89.72 acres acquired by him as above set forth; that it was understood by the parties that there should be retained by him, out of the 89.72-acre tract, that parcel shown on the map as 20 acres, although it was estimated at the time to contain 25 acres; and that the two tracts sold would contain 210 acres, although upon a survey it was found that their combined acreage was 214.59 acres.

It will be observed that none of Roberts' land abuts directly on the Knoblick Road, and especially none of the portions which he

"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."

The court in that case said:

"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, defeat the very object of the statute of frauds."

In Wortham v. Stith, 66 S. W. 390, 23 Ky. Law Rep. 1882, the writing was:

"Received of C. M. Wortham three hundred dollars in part payment of 115 acres of land, which I have this day sold him for $3,100," etc.

The court held that the writing was insufficient to constitute a compliance with the requirements of the statute of frauds.

In Hyden v. Perkins, 119 Ky. 188, 83 S. W. 128, 26 Ky. Law Rep. 1099, the writing involved was:

"Received of Henry Hyden $20 first cash payment on farm of about twenty acres known as the 'Vaught Farm,'" etc.

The court held that parol testimony could be resorted to for the purpose of showing what farm was known as the "Vaught Farm," if there was but one so known and it contained about 20 acres. The court further said:

"But if there were two farms to which this description would equally apply, then parol proof would be incompetent to show which of the two parties intended to designate. In other words, when the description given in the

writing is so uncertain that parol proof must be admitted to show what the parties meant, as between two or more things to which the description given in the writing would equally apply, then the contract is within the statute."

So in Winn v. Henry, 84 Ky. 48, 7 Ky. Law Rep. 693, the court held sufficient a writing, describing the property as, "Silver Lake Place, near Washington, Kentucky, containing 52 acres, more or less"; parol proof being admissible to show to what land this description applied. And in Henderson v. Perkins, 94 Ky. 207, 21 S. W. 1035, 14 Ky. Law Rep. 782, a writing was held sufficient which described the property as "my home place and storehouse," and gave the seller's name and residence.

In Bates v. Harris, 144 Ky. 399, 138 S. W. 276, 36 L. R. A. (N. S.) 154, a writing was held sufficient which described the land sold, as the vendor's "Muddy Creek Farm" stating that "it embraces 113 acres," where the vendor had such a farm on Muddy creek, although the vendor had in fact two farms on that creek, but the other did not contain 113 acres.

In Brice v. Hays, 144 Ky. 535, 139 S. W. 810, the writing described the land as, "about 150 acres of land near Otter Creek Station about one mile north of Rineyville, Hardin county, Kentucky, on I. C. R. R.," and the court held this description insufficient.

In Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266, the writing contained the description "five acres of lot 3, sec. 23, town 28, range 23." The court said:

"No means are given by which to determine what five acres in lot 3 is intended. When such an agreement contains sufficient elements of description, of course parol evidence may, and indeed must, be resorted to, to apply the description to the specific piece of land supposed to be intended; in other words, to show that a specific piece_answers to the description in the writing. But the writing must be a guide to find the land-must contain sufficient particulars to point out and distinguish the piece from any other-so that when the description in the writing is laid beside the description of a particular piece, it may be seen with certainty that the latter was intended by the former."

Other authorities to the same effect are Miller v. Campbell, 52 Ind. 125; Blankenship v. Spencer, 31 W. Va. 510, 7 S. E. 433; Omaha Loan & Trust Co. v. Goodman, 62 Neb. 197, 86 N. W. 1082; Grier v. Rhyne, 69 N. C. 346.

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Where the evidence is conflicting, and the mind left in doubt, and it is not reasonably certain that the chancellor has erred, the appellate court will affirm his decision.

[Ed. Note. For other cases, see Appeal and Єm Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.]

Appeal from Circuit Court, Marshall County.

Suit by D. T. Collins against Charles Cole and others. Judgment for plaintiff, and defendants appeal. Affirmed.

R. L. Shemwell, W. M. Reeder, and E. L. Cooper, all of Benton, for appellants. J. G. Lovett, J. E. Fisher, and Joe L. Price, all 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 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 he did not know where the tobacco patch was; that Mr. Cole told him to just buy the farm and not return a word. He further states that Houser told him that the old man was not capable of attending to his business, and ought to have a guardian; that he could not read, and they ran it over him. O. T. Davis testified that shortly after the sale from Collins to Houser he began negotiations with Cole for the purchase of the same tract of land. Cole stated that Houser had six years in which to pay for the farm, and would not have to pay a dollar on it unless he wanted to, and he would draw up. the notes the same way for Davis.

On September 1, 1913, Collins brought two separate actions, one against Roy Houser to set aside the deed in question on the ground of fraud and misrepresentation, and the other against Cole for the cancellation of the note on the ground that it was obtained from him by fraud. Afterwards the two cases were consolidated, and on final hearing plaintiff was granted the relief asked. The defendants appeal.

The particular fraud relied upon is the failure of the deed to specify that the $475 due the bank was to be paid before possession was given, and to provide that upon default in the payment of any one of the notes 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 Ilouser 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 note fell due and was not paid, all the notes became due. J. S. Rickman met Houser in Paducah, and says that Houser told him that Charlie got him to go over there and buy the place so Charlie could get his commission; that, if Charlie did not come clean with him, he was going on and keep the place himself; that he had six years in which to pay for the place; and that, if he didn't want to pay for it, he could give it up. Houser also said that he would buy all of Marshall county if he could buy it at that rate. A man by the name of Faust testified that Houser wanted to sell him the timber in

for the place, with the exception of the statement that Houser owned a small farm. Mr. Collins stated that he wanted the notes written so that he could collect the interest; that he did not need the money, but wanted the interest paid annually. Cole further says that he acted merely as an agent to sell the land, and that there was no fraud or conspiracy whatever between him and Houser. Houser also testified that Collins said that just so he got the interest was all he wanted. He did not tell Sam Rickman that he was buying the place for Charlie Cole, nor did he tell him that he would buy all of Marshall county if he could get it on those terms.

He did meet Sam Rickman, but the latter payments would be precipitated if one of the had been drinking. A number of witnesses testified that, while plaintiff's health was bad, he had sufficient mental capacity to attend to business.

notes was not paid at maturity, it is apparent that there is some evidence tending to support the conclusion of the chancellor. 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 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 other 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. 461, 13 Ky. Law Rep. 178; 8 Cyc. 680–682), yet there are many other circumstances in the case tending to sustain the finding of the chancellor. Cole, being the agent of plaintiff, sustained a confidential relation to him. In making the sale and drawing the deed, it was his duty to act in good faith. The evidence shows that Houser, before making the purchase, made but a slight examination of the farm. It is also shown that Houser owned but little property, and this was probably exempt. Plaintiff and N. R. Estes both say that the agreement was that, if one of the notes was not paid at maturity, all the notes were to become due. Plaintiff further says that the deed was read as if it contained such a provision. As written, the deed places plaintiff in the position where he would either have to wait until all the purchase money became due, or, in case the farm could be divided without materially impairing its value, enforce the payment of the different notes by separate sales of small portions of the farm. While it may be true While it may be true that in the hurry of closing a transaction the parties might omit to put in a deed a provision to the effect that, if one of the notes should not be paid on maturity, all the notes should become due, yet neither Houser nor Cole now claims that such provision was not put in the deed because the parties overlooked it. They are both insisting that the deed as written expresses the agreement be

Judgment affirmed.

CARRICK et al. v. GARTH et al. * (Court of Appeals of Kentucky. Nov. 10, 1915.) 1. RAILROADS 97 - CROSSING HIGHWAY —

CHANGE OF LOCATION-NECESSARY PARTIES.

In an action to change the location of a highway so as to abolish a grade crossing over a railway right of way and relocate the crossing at a point where it would cross the right of way by an overhead crossing, the railroad company is a necessary party.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 297-304; Dec. Dig. 97.] 2. APPEAL AND ERROR 882-INVITED ERROR-PARTIES.

Where one party demurs to the petition on the ground that a necessary party is not made a party to the action by it, he is estopped from afterwards alleging error in joining such party, as the error, if any, is invited.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 882:]

3. HIGHWAYS

72-ALTERATION - APPEAL

TO CIRCUIT COURT-TRIAL DE Novo.

Under Ky. St. 1909, § 4303, providing that in proceedings to change a highway any person aggrieved may appeal from the county court to the circuit court, where the trial shall be de novo, where on remonstrants' appeal to the circuit court, the trial was held de novo, and every material issue of fact was submitted to the tions of law, the objection that the court errojury under proper instructions covering all quesneously ignored the commissioners' report and remonstrants' exceptions thereto, and tried the case as if it were an ordinary action in the circuit court, is untenable.

[Ed. Note.-For other cases, see Highways,

Cent. Dig. §§ 239-252; Dec. Dig. 72.]
4. HIGHWAYS 72 - ALTERATION PROCEED-
INGS-APPEAL-RECORD-CORRECTION OF ER-

RORS.

tween the parties. That Cole was cognizant of the effect of the deed as written is clearly shown by his attempt to induce O. T. Davis 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. §§ 239-252; Dec. Dig. 72.] were entirely insufficient to pay for it, that Cole had a large commission at stake, that the deed was drawn in such favorable terms, and it is not now claimed that this was the result of any mistake on the part of Cole 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. §§ 651-659; Dec. Dig. 260.]

5. TRIAL 260-REQUESTED INSTRUCTIONS.

Where the instructions in a cause fully and fairly present to the jury every material issue of no error is presented by the court's refusal to fact necessary to a correct decision of the case, give requested instructions.

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

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