Ayer v. Waltrip's Adm'r

Court of Appeals of Kentucky

Ayer v. Waltrip's Adm'r

8 Ky. Op. 453, 1875 Ky. LEXIS 167

DecidedFebruary 16, 1875

StatusPublished

This text of 8 Ky. Op. 453 (Ayer v. Waltrip's Adm'r) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ayer v. Waltrip's Adm'r, 8 Ky. Op. 453, 1875 Ky. LEXIS 167 (Ky. Ct. App. 1875).

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Opinion

Opinion by

Judge Lindsay:

Sec. 161, Civil Code of Practice, authorizes the courts to allow amendments in furtherance of justice, by conforming the pleadings to the facts proved, when the amendment does not change substantially the claim or defense. But where, as in this case, a defense has been set up by answer, and the defendant then puts himself upon the witness stand, and swears to facts utterly irreconcilable with his answer, it is an abuse of discretion to allow him to abandon Iris original, and set up a new defense, under the pretext of conforming his pleadings to the proof. And more especially is this so when he offers no reason or excuse for his failure to rely on his original answer, upon the facts to which he deposed as a witness, and which, if true, were known to him when he first answered. Further than this, when the amended answer was permitted to be filed, his pleadings then contradicted each other, and no attempt was made to explain the contradiction. The court had no means of determining which of the two answers was true, and outside of the [454]*454proof might have set one off against the other, and disregarded both. But independent of the pleadings, the weight of the testimony is against the claim asserted by appellee.

J. C. Jonson, for appellant. Geo. A. Prentice, for appellees.

Bryant’s statement that appellee told him that the conveyance by Waltrip was a contrivance to avoid the payment of the grantor’s debts is uncontradicted, except by appellee himself. All the circumstances proved, tend to show that the conveyance was so intended; and the payment of money, in the presence of Wall, is'calculated to confirm rather than to’ weaken this conclusion. Appellees are unable to tell how1 much money (whether $500 or $600) he paid to Waltrip,' and Wall swears that he was sent for, and was present to see the money paid. After the pretended purchase, the crops raised on the land were divided between the vendor and vendee; and when Waltrip died, not one cent of the amount paid to him in the presence of Wall passed to his administrator, and no account is given of his having in any way appropriated the money during the short time he lived after its pretended payment to him.

Judgment reversed and cause remanded, with instructions to subject the land to the payment of appellant’s claim.

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Opinion by

Judge Lindsay:

Sec. 161, Civil Code of Practice, authorizes the courts to allow amendments in furtherance of justice, by conforming the pleadings to the facts proved, when the amendment does not change substantially the claim or defense. But where, as in this case, a defense has been set up by answer, and the defendant then puts himself upon the witness stand, and swears to facts utterly irreconcilable with his answer, it is an abuse of discretion to allow him to abandon Iris original, and set up a new defense, under the pretext of conforming his pleadings to the proof. And more especially is this so when he offers no reason or excuse for his failure to rely on his original answer, upon the facts to which he deposed as a witness, and which, if true, were known to him when he first answered. Further than this, when the amended answer was permitted to be filed, his pleadings then contradicted each other, and no attempt was made to explain the contradiction. The court had no means of determining which of the two answers was true, and outside of the [454]*454proof might have set one off against the other, and disregarded both. But independent of the pleadings, the weight of the testimony is against the claim asserted by appellee.

J. C. Jonson, for appellant. Geo. A. Prentice, for appellees.

Bryant’s statement that appellee told him that the conveyance by Waltrip was a contrivance to avoid the payment of the grantor’s debts is uncontradicted, except by appellee himself. All the circumstances proved, tend to show that the conveyance was so intended; and the payment of money, in the presence of Wall, is'calculated to confirm rather than to’ weaken this conclusion. Appellees are unable to tell how1 much money (whether $500 or $600) he paid to Waltrip,' and Wall swears that he was sent for, and was present to see the money paid. After the pretended purchase, the crops raised on the land were divided between the vendor and vendee; and when Waltrip died, not one cent of the amount paid to him in the presence of Wall passed to his administrator, and no account is given of his having in any way appropriated the money during the short time he lived after its pretended payment to him.

Judgment reversed and cause remanded, with instructions to subject the land to the payment of appellant’s claim.

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Bluebook (online)

8 Ky. Op. 453, 1875 Ky. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayer-v-waltrips-admr-kyctapp-1875.