53 Ky. 212 | Ky. Ct. App. | 1853
delivered the opinion of the court.
We suppose it is not very material whether the pleading, in which Bush prays for a review and reversal of the decrees therein mentioned, is called a petition or a bill. If it contain sufficient matter to authorize a review of the decrees complained of, the question whether the mode of proceeding is to be regulated by the Code or by the pre-existing practice, is one that will arise subsequently. The material question on the demurrer is whether the matter alleged is sufficient to authorize a review; and this' question is argued, on all sides, with reference to the pre-existing principles and practice of courts of equity on this subject, which have not, as we suppose, been changed by the Code.
The demurrer admits, for the purpose of testing their sufficiency, the facts stated in the petition or bill; but the exhibits referred to must be taken into view, as controlling any statement which is inconsistent with them, except so far as the exhibits are themselves directly impeached.
The nature of the decrees now brought in question, and of the proceedings on which they were founded, is fully detailed in the opinion of this court, rendered in the case of Madeira's heirs v. Hopkins, &c. 12 B. Monroe, 595. It is sufficient now to state, that in 1831, Hopkins filed his bill against the administrator and the infant heirs of Madeira, claiming to have purchased from Madeira, in his lifetime, four lots 234, 235, 236, and 237, in the town of Covington, situated' on the north side of fifth street, between Greenup and Sanford streets, and also the block or parcel of ground1 on the opposite side of fifth street, extending to the southern boundary of the town, and professing to exhibit'a bond for title to the said lots and ground, setting forth the terms of purchase, and alleging payment- of the price, except a sum paid into- court, obtained a' decree for conveyance, and a commis-' sioners deed for the land. In 1848, after having •sold-the whole or nearly the whole of this land, to va
On the hearing, the circuit court decreed a conveyance from-Madeira’s heirs to Hopkins for the "whole of the land claimed by him, and dismissed their crossbill. But this court, in the opinion above cited, reversed that decree, and also the decree in the suit oí 1831, and being of opinion that the terms of the alleged bond were not sufficiently proved, sent back the case, with directions to dismiss the bill of Hop
On the 21st day of July, 1852, Bush, with the leave of the court, filed this petition for a review. The petition states, briefly, the proceedings above mentioned, and states, that at the close of the preceding term of the circuit court in which it was filed, the opinion and mandate of the court of appeals being certified to that court, an order was made in conformity therewith, directing commissioners to ascertain and settle on account of rents, &c. And the plaintiff states, that since the rendition of the reversed decree, and since the reversal of that decree by this court, he ha3 learned, that on the 30th November, 1828, Jacob Madeira entered into an agreement with said Hopkins for the sale of the four lots 234, 235, 230, and 237, for the sum of two hundred dollars, of which fifty dollars were paid in cash, and the residue was to be paid in six, twelve, and eighteen months, which agreement was reduced to writing and signed by said Madeira, who, at the sametime, made a provisional agreement with Hopkins for the sa'e of the ground south of fifth street, believed also to have been in writing, but of which sufficient evidence has not been found. He states, also, that since 'the rendition of said decrees-he has ascertained that said Madeira, about the 15th day of April, 1820, wrote a letter to Warder and Brothers, of Philadelphia, to whom he was accountable for sales of certain lots and lands in Covington, including those now in question, in which letter he set forth the sale which had been made to Hopkins, (stating by mistake the name as J. Hopkins instead of Wm. Hopkins,) of the four lots above described, specified the terms of sale as above stated, and acknowledged the receipt of $50, which he accounted for to said Warder & Brothers ; and he refers to the affidavit of J. G. Arnold to show that William Hopkins was intended instead of J. Hopkins. He states, further,
This letter-book must be regarded as famishing evidence entirely satisfactory of the fact and terms of the sale; and if the original letter, which it proves, be not itself such a written memorandum of the contract
But if this affidavit were out of the case, or if, with its statement, it be still doubtful whether the bond included only the four lots or extended also to the other
The deposition of Haines, who had the custody of the books, is still more vague with respect to any reference therein, to the sale from Madeira to Hopkins; and so far from showing that Bush or Hopkins might have discovered and availed themselves of whatever evidence the books contained, the deposition shows that Haines, while he denied knowledge of any thing in them material to the present case, distinctly refused to allow an inspection of them, and also refused to give extracts from them, saying that he did not feel at liberty to do so, but would surrender them to Madeira’s heirs; and it appeared then, as now, that the books were not within the State of Kentucky, but in. Cincinnati, Ohio.
If it be conceded that a party or counsel of extreme vigilance might, in a proper state of case, have instigated some means of coercing a production of these books under penalty of refusing any aid to Madeira’s heirs, or of enjoining them from proceeding at law to recover the lots and land in question, it must be assumed that neither the answer nor deposition furnish
Then, we cannot doubt that the party or parties interested in the four lots may have a review and reversal of the decree, so far as relates to those lots, upon grounds which do not afiect the decree for the rest of the land; and as all the parties interested in these four lots are made parties to the petition or bill of review, and as, even if there be a defect of parties, the bill should not be dismissed absolutely on demur