October 10, 2012

Wigginton v. Ewell, Laurel, 1888


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9 S.W. 285; 1888 Ky. LEXIS 205; 10 Ky. L. Rptr. 383

September 25, 1888, Decided


Appeal from circuit court, Laurel county.

This was a suit in equity by H. H. Wigginton against R. L. Ewell. Wigginton purchased of Ewell 309 acres of land, for which Ewell executed his bond for title. One hundred and nine acres of the land were located by a designated boundary, the remaining 200 acres were to be laid off so as to adjoin this 109 acres, out of other lands that Ewell claimed to own, in whatever convenient shape Wigginton should designate. Plaintiff alleged that defendant was unable to make a valid title to the land because of certain defects in his title, mentioned by petitioner, one of which was that a Mrs. Jackson had a contingent right of dower in the 109-acre tract. Plaintiff asked a rescission and cancellation of the contract. Ewell denied that he was unable to make a valid title, and further stated that, after the contract set up by plaintiff was made, and the title-bond executed, he had, at plaintiff's request, laid off for him, in lieu of the 200 acres mentioned in the contract, a tract of land containing more than 200 acres, not adjoining the 109 acres; and plaintiff had taken possession of and enjoyed the same, agreeing to pay defendant one dollar for every  [**2] acre in said tract in excess of 200 acres. Defendant asked judgment against plaintiff for the amount still due him by the original contract, and for $175, there being 175 acres more than 200 in the second tract, and for an enforcement of his vendor's lien to satisfy his judgment. Plaintiff was denied any redress, and defendant granted the relief he prayed for. Plaintiff appeals.

COUNSEL: J. W. Jones and E. W. Hines, for appellant.

R. L. Ewell, for appellee.



 [*285]  PRYOR, J.
We find no difficulty in determining the nature of appellee's title, and his ability to convey the land in question. Mrs. Jackson, as the testimony shows, is now dead, and this removes any contingent claim of dower. The contract in writing shows the land purchased; and the error in the court below consists in requiring the appellant to take and pay for land not embraced within the written contract, and, as his own testimony shows, under a parol agreement that is denied by the appellant. This parol contract cannot be enforced, and should have been disregarded. On the return of the case, the appellant may designate the manner in which the 200 acres  [*286]  shall be laid off, so as it is bounded in convenient shape, and adjoins  [**3] the 109 acres for which a boundary is given. This right is given him by the contract; and upon the return of the surveyor's report a deed will be made accordingly, and the lien of the appellee enforced. If no selection as to boundary is made by appellant, a deed should be tendered for 200 acres adjoining the 109 acres, in convenient shape, and the lien still enforced. Judgment reversed, and remanded for proceedings consistent with this opinion.

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