Holland v. Crutchfield

5 Ky. Op. 381, 1872 Ky. LEXIS 292

• Court: Court of Appeals of Kentucky
• Decided: May 1, 1872
• Status: Published

Opinion

Opinion by

Judge Peters :

On the original hearing the attention of the court was not particularly called to the case of Plolland and wife against Stone, and it was not observed that the pleadings were different materially in that case from the others.

In the answer of Holland and wife which they make a cross-petition against E. M. Stone, and to which he made no reply, or, if he did, it has escaped the attention of the court, although a summons was served on him. They charge that the lot for which they are sued was conveyed by E. L. Lampton to Francis M. Minter, when he was an infant, that before he, Minter, was twenty-one years of age he sold the lot to D. B. Vannice, upon condition that he would execute a bond to Vannice with said ■E. M. Stone as his surety; that Minter would convey said lot of ground to him after he arrived at twenty-one years by deed vesting a good and valid title to said lot of ground in said Van-nice; that a bond to that effect was executed and delivered by said Minter, with said Stone as his surety to said Vannice, and he became the purchaser of said lot for a valuable consideration. That after Minter arrived at twenty-one years of age he did convey said lot to Vannice. But the latter retained the bond executed by Minter and Stone to him, which was in his possession at Vannice’s death, but since that event it has been lost or mislaid and they are unable to file it. And they repeat in their cross-petition against Stone that he covenated in his said bond that said Minter should convey said lot to their vender, Vannice, and invest him with a clear and perfect title to the same.

They refer to and make the deed from Minter to Vannice, and from the heirs of the latter to them as parts of their cross-petition and allege that Stone, by his bond, is estopped to assert title to the lot against them.

The assertion of right to the lot by appellee, Stone, is directly opposed to and in conflict with his covenant or undertaking in the bond as set out in the cross-petition and, if executed by him, and it was not procured by the fraud or artifice of Vannice to whom it was executed, he is by his own writing precluded from asserting claim to this lot.

The execution of the bond by him is not denied, nor is fraud, or artifice charged. It therefore presents a barrier in his way which he can neither overcome, nor shun.

The judgment in favor of appellee, Stone, is, in its character, several against appellants, Holland and wife, etc., for “Lot No. 41,” and they have prosecuted a separate appeal from that judgment — indeed, all the appeals in the case were prosecuted separately, to which no objection is, nor could be properly made, and if erroneous and prejudicial to them they have a right to have it reversed by this court, and as it is for the reasons herein stated clearly erroneous, said judgment is reversed and the cause is remanded with directions to the court below to dismiss the petition against appellants and for a judgment for costs. This reversal will not affect the other judgments against other parties.

Harrison, for appellants. Caldwell, Pirtle & Cwruth, for appellees. Rodes, Rhea, for appellant. Clarke, Dulmey, for appellee.