Maynard v. Farley

198 Ky. 420 | Ky. Ct. App. | 1923

Opinion of ti-ib Court by

Judge Clarke

Affirming.

In October, 1912, appellees, Matilda Farley and ber Imsband, sold and by deed conveyed to appellant 478 marked trees standing on land owned by Mrs. Farley, and it was stipulated in tbe deed that the trees were to be cut and removed from tbe land witbin five years thereafter.

In May, 1920, Mrs. Farley and ber husband instituted this action against Maynard to quiet ber title to tbe land, alleging that the defendant was casting a cloud upon same by persistently claiming under bis recorded deed title to the trees which be bad not cut or removed, and from a judgment in favor of plaintiffs defendant has appealed.

It is first urged that the petition did not state a cause of action because of failure to allege that plaintiffs bad furnished defendant a road over adjoining lands to enable him to haul the trees from their land to market, as it is claimed the deed obligated them to do. But this question is not here, since the sufficiency of the petition was not questioned below by demurrer or otherwise.

The next contention, or rather suggestion, is that the court erred in sustaining demurrers to paragraphs one, two, four and five of the defendant’s answer and counterclaim, but this contention is entirely groundless, since only the conclusions of law and none of the facts alleged in the petition are denied, and no one, nor all, of these paragraphs allege facts sufficient to state either a defense or a counterclaim.

The first paragraph simply denies that plaintiffs owned the trees, or that defendant had lost title thereto by his failure to remove same within the five years allowed for the purpose by the deed.

The second paragraph states that defendant paid $478.00 for the trees, and that the title thereto remained in him despite his failure to remove them within the five years.

The fourth paragraph alleges that because of world war conditions, defendant was unable to procure hands to remove the trees, and that he was too old and feeble to do so.

While the fifth paragraph alleges that if defendant did not still own the trees, he was entitled to recover the $478.00 he had paid for same, with interest.

One of the cases relied upon by the appellant to sustain the contention that the court erred in sustaining demurrers to these paragraphs of his answer, is Wright v. Cline, 172 Ky. 514, 189 S. W. 425, from which he quotes the following excerpt:

“It is well settled that "a sale of standing trees, to be removed from the land within a fixed time in the contract, is a sale of only so many of the trees as are removed within that time, and the vendee who fails to remove the trees purchased by him within the time specified in the contract has no remedy, unless he has been prevented by the act of God or the act of the seller from removing the trees within the .specified time. If he is so prevented, the vendee is entitled to have reasonable time after the expiration of the time fixed in the contract within which to remove the trees.”

It is at once apparent that under this statement of law, which is sustained by many cases from this court, none of these paragraphs of the answer stated a defense to the action. In support of his counterclaim for recovery of the $478.00 with interest, and a lien upon the timber to secure the payment of same, defendant cites and quotes from Stamper v. Combs, 164 Ky. 733, 176 S. W. 178. But that case involved a cancellation of a deed for standing trees upon the ground that it was procured by fraud, and the fact that the grantor upon procuring a cancellation of the deed was required to refund the money he had received as a consideration therefor, as well as what the court said in discussing that question is patently inapplicable here, and does'not in the least support appellant’s contention that, having lost title to the trees by his own failure to remove them from the land within the time allowed, he is entitled to recover the money he paid for the trees, with interest.

The final contention is, that upon the proof the court erred in denying the estoppel pleaded in the third paragraph of his answer, which was, in substance, that the plaintiffs had induced the defendant to believe that the provision of the deed requiring the timber to be removed within five years would not be enforced, and that he might remove same at his pleasure.

The trouble with this contention is, that neither of the plaintiffs ever said anything to the defendant indicating that they would not insist upon this provision of the contract, and they denied making the statements attributed to them by two witnesses, which, if made to the defendant, might possibly have created an estoppel under Murray v. Boyd, 165 Ky. 625, 177 S. W. 468.

Hence, if we might concede that plaintiffs, would have been estopped from insisting upon the terms of their contract with defendant by statements not made to him but made to others who communicated same to him — a question we do not decide — we could not say that the chancellor erred in holding it was not satisfactorily established by the evidence that such statements were made by plaintiffs.

Perceiving no error in the record, the judgment is affirmed.