106 Ky. 239 | Ky. Ct. App. | 1899
delivered the opinion of the court.
Tbe appellees instituted suit in the Lee circuit court, seeking to obtain' a judgment against E. G. Oreech for the sum of $360, and also claimed a lien, and sought the enforcement of the same, upon a tract of land alleged to have been mortgaged or conveyed to the said. Abners to secure the debt aforesaid. The appellants^ Enoch Creech and Emily Parsons, were also made parties to the suit, it being alleged in the petition that Parsons asserted
It is substantially averred in the petition that appellant Enoch Creech, on the-day of-, 18 — , sold, and by title bond conveyed, to E. G. Creech the said tract of land, and at the time of said sale from Enoch to E. G. Creech he (Enoch) delivered the possession of said land to E. G. Creech, and that all the purchase money had been paid. It was also claimed by appellees that they were entitled to have said Enoch Creech convey the land to E. G. Creech, and ashed that he be adjudged to do so.
The appellant Parsons filed a demurrer to the petition, which was overruled by the court, to which ruling the appellant excepted. The substance of the answer of appellant Parsons is a denial that the Abners had any lien upon the land mentioned for the payment of their said alleged debt, or any part of said debt, and also a denial of a sale of the land by Enoch Creech to E. G. Creech, or the execution of any writing by Enoch Creech to E. G. Creech requiring him to convey the land to E. G. Creech. It is also alleged in the answer that appellant Parsons had purchased the land from E. G. Creech, and was in the actual occupancy of same at the time of the execution of the alleged mortgage, and that she had continuously lived on same for more than four years last past. It is also claimed that she owes the defendant Enoch Creech some unpaid purchase money on his said land, which he is to convey to her by good and sufficient deed when she pays to him the unpaid purchase price of said land. In conclusion she prays that plaintiff’s petition be dismissed, and that said alleged mortgage be adjudged null and void, and that she have judgment for her costs, etc.
The reply is a' substantial traverse of all the affirma
Enoch Creech also filed his answer, in which he denied that plaintiffs had any lien under or by virtue of their alleged mortgage, and denied plaintiffs’ right to have their alleged debt against the defendant E. G. Creech, or mortgage, adjudged a lien on said land, or any part of it, and denied that he ever sold the land in controversy to E. G. Creech, or ever executed any writing to that effect. The substance of his answer is that he had made a conditional verbal trade with E. G. Creech, by which, if E. G, Creech paid certain sums of money to him, he would sell the land to E. G. Creech; but he alleged .that no such payment was ever made.
The plaintiffs, in their reply to the answer of Enoch Creech, denied that he only allowed and permitted his brother, E. G. Creech, to live on said land as tenant, or that he only allowed' him to use and occupy said land. It is further alleged that at the time that Enoch Creech sold the land to his brother, E. G.
The rejoinders of the appellants may be taken as a traverse of all the material averments of the replies. The appellants, it seems, also excepted to the deposit1'ons of William Abner, John Abner, O. H. Davis, and Taylor McGuire, taken on the 13th of August, 1894. It does not, however, appear that the court ever acted upon the exceptions filed.
The court, upon final hearing, rendered a judgment against E. G. Creech for the sum claimed to be due the Abners, and also adjudged to them a lien upon the land described to satisfy the judgment, and adjudged a sale thereof; and it appears that the land has been sold, and exceptions filed to the report of sale, but it does not appear that the court ever passed upon the exceptions.
It is true that the .petition says that the debt is due and unpaid. The answers filed do not cure the defect in the petition, and it seems to us that the petition failed to show a cause of action. See Moxley’s Adm’rs v. Moxley, 2 Metc. (Ky.) 309; Cloud v. Clinkinbeard, 8 B. Mon. 397; (48 Am. Dec., 400), Huffaker v. Bank, 12 Bush, 287; Murphy v. Estes, 6 Bush, 532; 14 B. Mon. 67, 203; Mountjoy’s Adm’r v. Pearce, 4 Metc. (Ky.) 97.
It will be further seen that the petition shows the legal title to be in Enoch Creech, but it seems that the cause was
It is a well-settled rule of law that, as long as the vendee looks to his vendor for title, his possession is not adverse, and that he can not avail himself of possession under such a contract to prove his title. A parol contract for the sale of land is not enforceable, and the vendee acquires no title whatever to the land by virtue of such sale; but all the modern decisions of this court sustain the doctrine that a party may, by parol, purchase land, and enter upon the same, and he may then openly and notoriously hold, claim, and occupy the same adverse to all the world, and that such adverse holding and occupancy will ripen into a perfect title within fifteen years, unless the statute is suspended or extended on account of the disabilities of the holder of the legal title. In other words, when the vendee has so held during the statutory period necessary to vest in him the .independent title to real estate, that his titlq will in like manner become perfect, although he first entered under a parol contract.
Taking the pleadings and proof into consideration in this case, we are of opinion that the petition did not show a right to recover judgment against