October 20, 2012

East v. Canady et al., Wayne, 1873

Previously:


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 William East v. Eliz. Canady, etc.

COURT OF APPEALS OF KENTUCKY

6 Ky. Op. 314; 1873 Ky. LEXIS 127

January 14, 1873, Decided

PRIOR HISTORY:   [*1]  APPEAL FROM WAYNE CIRCUIT COURT. 

DISPOSITION: Petition dismissed. 

COUNSEL: Van Winkle, for appellant.

James, for appellees. 

JUDGES: Judge Lindsay. 

OPINION BY: Lindsay 

OPINION

Opinion by Judge Lindsay:

Martin Silvees was a competent witness in favor of the widow and children of John Silvees, deceased. He had no interest with them in their defense, but was rather interested in compelling them to pay his debt, and as the proceeding against him was upon a return of nulla bona he was liable for costs, whether it resulted in the discovery and subjection of any of his estate to the payment of his debt or not.

His statements are not altogether consistent, but as he is neither impeached nor directly contradicted, his evidence could hardly have been properly disregarded.

Even if it be true that he voluntarily and without consideration remitted to appellees two hundred dollars of the purchase price originally agreed to be paid for the land, we do not well see how appellant can complain on that account.

By the sale of what he claimed to be Martin Stevens' equity of redemption in a tract of land, he, by his own bid, satisfied his execution in full. This was done on the 3d day of January, 1865.

The deed to these [*2]  appellees was made fifteen days afterwards, when appellant had no apparent claim against Martin Silvees. Having elected to take Martin Silvees' title to this land, in satisfaction of his debt, these appellees had the legal right to make any arrangement with the latter they could to perfect this title, and it can scarcely be inferred that by releasing a portion of the purchase money, as matters then stood, the parties intended to practice fraud on appellant. His petition as to appellees was properly dismissed.

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