October 1, 2012

Turner v. Howell, Pulaski, 1899

TURNER v. HOWELL.

COURT OF APPEALS OF KENTUCKY

53 S.W. 643; 1899 Ky. LEXIS 575; 21 Ky. L. Rptr. 979

November 21, 1899, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

DISPOSITION: Affirmed.

COUNSEL: O. H. Waddle, for appellant.

W. A. Morrow, for appellee.

JUDGES: PAYNTER, J.

OPINION BY: PAYNTER

OPINION

 [*643]  PAYNTER, J. - The appellant resists recovery on notes executed for the balance of purchase money, on the grounds (1) that the deed tendered does not embrace all the land which Vanhook by his title bond agreed to convey; (2) that the title to the land is defective, because the heirs of Solomon Langford had not parted with their interest in it. We will consider the questions in the order stated.

The land which counsel for appellant insists he will lose by the deed is about 12 acres of poor mountain land, worth about $2 per acre. There is a question as to the exact location of one of the lines to the boundary of land which Vanhook sold to Turner, but the testimony tends to show that they agreed as to the location of the line, and built a division fence upon it, several years before this suit was brought, and that both parties recognized the fence as being on the line. Under these circumstances, and the testimony in the case, we do not  [**2] feel authorized to reverse the judgment of the chancellor denying appellant's right to an abatement on the purchase money for the parcel of land in dispute.

 [*644]  Stephen Langford left eight children, who inherited a certain boundary of land, subject to the widow's dower right in it. The widow is dead. Vanhook purchased the interest of three of the heirs, and he, together with his wife, owned one-half of the land, she being one of the heirs. One Linville purchased the interest of three of the heirs, thus acquiring three-eighths of the land, and it appears that Solomon Langford, one of the heirs, did not dispose of his interest in it. Vanhook and Linville had possession of the land. Linville contemplated the acquisition of Solomon Langford's interest in it, and he and Vanhook divided it between themselves; Vanhook and wife taking one half of it, and Linville taking possession of the other half. There is no evidence or any pleading to the effect that Vanhook and wife were in possession and sold to Turner more than one-half of the boundary of land, according to quality and quantity. The heirs of Solomon Langford can have their one-eighth interest assigned out of the part in possession of Linville,  [**3] and it would in no wise affect the right which Turner acquired in the one-half conveyed to him by Vanhook and wife. Besides, Vanhook told Turner at the time of the sale that Solomon Langford or his heirs held the interest in the land stated, and that Turner agreed to take it notwithstanding the existence of that claim. We are of the opinion, therefore, that this alleged defect in the title is not available as ground for resisting the recovery for the balance of the purchase money. The judgment is affirmed.

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