135 Ky. 525 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
The appellees, Frank Waters and others, instituted this action against J. H. Keeney and others to recover
The 50-acre tract of land was patented by James Coffey on the 27th day of June, 1841. Coffey, in his lifetime, sold this land to G. W. Troxell, but did not convey the same by deed or other writing. On January 27, 1881, four out of the five heirs of James Coffey, who was then dead, together with his widow, made a deed to Gr. W. Troxell conveying the land in question. The deed recited that it was made in consideration of $200 paid to James Coffey in his lifetime. Before procuring this deed, G. W. Troxell, on October 3, 1880, sold by title bond to James PI. Davis 300 acres of land in Wayne county, including the land in controversy. On April 26, 1888, G. W. Troxell instituted an action against James PI. Davis, wherein he sought to recover a balance of $50 due as part of the purchase money for the land sold to Davis. To this action Davis filed an answer, in which he pleaded inability of Troxell to make title to a large part of the 300 acres mentioned in the bond. This action was never tried. The last order was made at the May term, 1889, of the Wayne circuit court.
In the year 1881 James PI. Davis, who theu held the title bond referred to, requested one John M. Foster, whom he had employed in removing the timber, to move upon the land and remain there until Davis told him to get off. Foster first moved upon the 50-aero track in controversy. He remained there for about two years. He then built a house on an adjoining
On January 28, 1909, they tendered an amended answer, in which they pleaded the outstanding title bond from G-. W. Troxell to James H. Davis as a bar to a recovery by appellees. The court did not permit the amended answer to be filed. After the discovery of the record in the case of Gr. W. Troxell against James H. Davis, appellants went to the heirs of James IT. Davis and purchased from them all their right, title, and interest in the 300 acres of land, including the land in controversy. Appellees are the only heirs of Gr. W. Troxell, deceased. They introduced evidence to the effect that the written contract of sale between Gr. W. Troxell and James II. Davis, was rescinded.
Upon the trial of the case, the court instructed the jury to find for appellees the undivided one-fifth of the 50-acre tract of land in controversy under the title' conveyed to them by the deed of Sallie and J. M. Smith. As to the remaining four-fifths of said tract of land, the court directed the jury to find for appel
It is first insisted by appellants that the court erred in refusing to permit the amended answer to be filed. It is perfectly manifest, however, that appellants were not prejudiced by this action of the court. They were permitted to offer in evidence the title bond from Troxell to Davis and all the record of the action instituted by Troxell against Davis. Appellants not only received the benefit of this evidence, but the court told the jury, in effect, to find for the appellants unless they believed the contract of sale was rescinded. No instruction more favorable to appellants could have been asked by them. Where a party gets the benefit of a defense pleaded by him, he cannot, complain that the answer pleading the defense was, not permitted to be filed.
But it is insisted that the court erred in admitting-evidence of the parol rescission of the written contract of sale between Troxell and Davis. While there-is some conflict of authority upon the question whetheir or not a contract in writing, and which is required lly the statute to be in writing, can be rescinded by
It is also insisted by appellants that the evidence of the parol rescission in this case does not come up to the standard set in the case of Davis v. Benedict, supra, where it is held that the proof must be clear and convincing. Two witnesses testified upon this point. Neither one of them is impeached. Their evidence is to the effect that, after the institution of the suit by Troxell against Davis, they agreed to leave the matter to Joe Roberts and Isaac Poster to settle. They compromised the matter by permitting Troxel to take back the 50-acre tract and Davis to keep the timber which he had gotten from the land. Both Troxell and Davis agreed to this settlement. Furthermore, the very fact that the suit instituted by Troxell against Davis was permitted to remain upon the docket without action ever being taken by either party is a circumstance tending to support the testimony of the two witnesses. We therefore conclude that the evidence of the oral Rescission and compromise was sufficiently clear and convincing to authorize its admission by the court and to justify the instruction complained of.
There was some evidence to the effect that W. A. Kinnie, agent of the Stearns Lumber Co., desired to purchase the Davis lands. He secured from Prank Waters and wife, two of the appel|
Upon the whole case, we are unable to find any error in the record prejudicial to the .substantial rights of appellants, and the judgment is therefore affirmed.
