Hull v. Bassett

Court of Appeals of Kentucky

Hull v. Bassett

2 Ky. Op. 596, 1866 Ky. LEXIS 374

DecidedJune 5, 1866

StatusPublished

This text of 2 Ky. Op. 596 (Hull v. Bassett) 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

Hull v. Bassett, 2 Ky. Op. 596, 1866 Ky. LEXIS 374 (Ky. Ct. App. 1866).

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Opinion

Opinion op the Court by

Judge Robertson :

Tbe bill of sale, though peculiarly ambiguous, purports a sale of the absolute title to Minerva as Basset’s slave and a general warranty of such title.

It appears that, at the time of the sale, the vendee (now appellant) knew the status of the title to be a life estate in the vendor Basset, with remainder in his deceased wife’s descendants, two of whom were infants, and some others married women. None of these were parties tq the sale, which implies that, on the payment (a year after its date) of the consideration, they were to relinquish their title. The appellant must therefore be presumed to have known that all he got by his purchase was the appellee’s life estate and his guaranty of the remainder, and this was a binding consideration commensurable with the amount of the note, and left no ground for a plea in bar of the action on the note, or for any other relief than an independent action on Basset’s warranty, as the only remedy for a refusal by the owners of the remainder to con[597]*597firm the sale whenever a confirmation should be demanded by the appellant. And there is no proof of any such demand and refusal. There is therefore no proof of even a partial failure of consideration or of fraud. Nor although appellant enjoyed the use and retained the possession of Minerva for more than three years succeeding his purchase, is there any proof of an offer to return her, or to pay any portion of the price, or even hire.

The appellant alleges in an answer that by an oral stipulation, inconsistent with the written memorial of the contract, the sale was to be void if the owners of the remainder should refuse to relinquish to him their interest. But such a defense, either partial or total, without proof of fraud or mistake in the written contract is inadmissible. And even if it were admissible, it would be unavailing, as there is no pretense of proof of demand and refusal.

Wherefore, the judgment for the whole amount of the note for the price of Minerva is approved and affirmed.

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Opinion op the Court by

Judge Robertson :

Tbe bill of sale, though peculiarly ambiguous, purports a sale of the absolute title to Minerva as Basset’s slave and a general warranty of such title.

It appears that, at the time of the sale, the vendee (now appellant) knew the status of the title to be a life estate in the vendor Basset, with remainder in his deceased wife’s descendants, two of whom were infants, and some others married women. None of these were parties tq the sale, which implies that, on the payment (a year after its date) of the consideration, they were to relinquish their title. The appellant must therefore be presumed to have known that all he got by his purchase was the appellee’s life estate and his guaranty of the remainder, and this was a binding consideration commensurable with the amount of the note, and left no ground for a plea in bar of the action on the note, or for any other relief than an independent action on Basset’s warranty, as the only remedy for a refusal by the owners of the remainder to con[597]*597firm the sale whenever a confirmation should be demanded by the appellant. And there is no proof of any such demand and refusal. There is therefore no proof of even a partial failure of consideration or of fraud. Nor although appellant enjoyed the use and retained the possession of Minerva for more than three years succeeding his purchase, is there any proof of an offer to return her, or to pay any portion of the price, or even hire.

The appellant alleges in an answer that by an oral stipulation, inconsistent with the written memorial of the contract, the sale was to be void if the owners of the remainder should refuse to relinquish to him their interest. But such a defense, either partial or total, without proof of fraud or mistake in the written contract is inadmissible. And even if it were admissible, it would be unavailing, as there is no pretense of proof of demand and refusal.

Wherefore, the judgment for the whole amount of the note for the price of Minerva is approved and affirmed.

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Bluebook (online)

2 Ky. Op. 596, 1866 Ky. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-bassett-kyctapp-1866.