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CALEB FRAILY v. HENRY LANGFORD ET AL.
COURT OF APPEALS OF KENTUCKY
8 Ky. 362; 1818 Ky. LEXIS 151; 1 A.K. Marsh. 362
November 26, 1818, Decided
PRIOR HISTORY: [**1] Writ of Error to reverse a Judgment of the Lincoln County Court.
DISPOSITION: Decree reversed, with costs, and cause remanded.
COUNSEL: Hardin for appellant, Pope for appellee.
OPINION
[*362] The Chief Justice delivered the opinion of the court.
This was a bill in chancery, exhibited by Fraily against Reed's heirs and Langford, and, after the death of the latter, revived against his heirs.
Fraily alleges, in substance, that he purchased of Reed a tract of land, being part of an unsurveyed entry of two thousand acres, lying on Dick's river, and paid the consideration thereof, for the conveyance of which Reed executed to him an obligation, That the entry having been afterwards surveyed, Reed assigned the plat and certificate of survey to Langford, who promised to convey to Fraily the part [*363] purchased by him, when the patent should be obtained; and that Langford has obtained a patent, but has wholly failed to convey to Fraily, and he therefore, prays a decree for a conveyance.
The bill was taken for confessed as to Reed's heirs, and on the part of Langford's heirs the statute against frauds and perjuries was pleaded, and an answer put in denying the material allegations of the bill.
[**2] The circuit court on a final hearing dismissed the bill, and Fraily has brought the case to this court by writ of error.
The fact of the sale of the land and the execution of the bond for the conveyance of it by Reed to Fraily, is incontestably established. But it is objected that Fraily is not entitled to a decree for a conveyance from Langford's heirs; 1st, Because when Langford received the assignment of the plat and certificate of survey, he gave no promise or assurance in writing that he would convey to Fraily, and therefore was not bound to do so, according to the provisions of the statute against frauds and perjuries. 2dly, Because Langford was a purchaser for a valuable consideration without notice of Fraily's equity. 3dly, Because the proof does not show that Fraily has paid the consideration. And, 4thly, Because of the lapse of time from the date of the contract before the commencement of this suit.
The first and second of these objections were not relied on in the argument in this court, and are clearly untenable. The first, because Fraily's right is not founded upon any promise or assurance made by Langford to Reed, but on the written obligation of the Latter, and whether [**3] Langford made any such promise or assurance, either verbally or in writing, is wholly immaterial; and the second objection is not tenable, because it is not true in fact, as the testimony in the cause very abundantly shows.
The third and fourth objections, though relied on in the argument, are evidently not maintainable.
As to the third objection it may be sufficient to remark, that the proof in the cause clearly establishes some payments, and although neither the amount of the price nor of the payments is precisely ascertained, yet it is inferrible, both from the conduct and conversation of Reed, that the payments were in full of the price agreed to be given. Besides, the payment of the price is alleged in the bill, and the bill being taken for confessed as to Reed's heirs, must be [*364] taken to be true as to this point, for their interest is alone involved in the question of payment.
To the fourth objection it is a sufficient answer that there was not twenty years from the date of Fraily's purchase, and only about eleven from the date of the grant to Langford, before the commencement of this suit, and a lapse of less than twenty years from the accrual of the right of suit, [**4] is no bar to the assertion of an equitable right in a court of chancery, as it would not be to the assertion of a legal right in a court of law.
The decree of the circuit court must be reversed, with costs, and the cause remanded, that a decree may be there entered for the complainant, in conformity to the foregoing opinion.
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