Powell v. Eve

5 Ky. 317

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1811
• Status: Published

Opinion

OPINION of the Court, by

Judge Clark.-

— George Eve exhibited his bill in the Scott circuit court against William. Webb and Ambrose Powell, to recover the surplus contained in the boundaries of a tract of land sold by him to Webb. The bill states that he sold gad 'fyonveyed to Webb 168 acres of land, by the acre, described by certain metes and bounds ; that Webb had sold and conveyed the same to Powell by the acre ; that he has since tile sale discovered the boundaries contain eight acres more than the quantity called for ; that by his agreement with Webb he was only bound . to convey 168 acres, and no more,

Powell in his answer denies that he purchased tK,s land of Webb by the acre, but in gross, and that he was a purchaser for a valuable consideration, without notice of the claim, set up by the complainant. The cause came on and was heard without an answer from Webb, on the bill being taken as confessed against him. The court decreed to the complainant 63 dollars 36 cents, the value of the eight acres, to be paid by Powell : to which decree Powell prosecutes this writ of error.

Whatever claim the complainant may have on Webb for the value of the eight acres, (of which we shall not inquire) he has certainly none on Powell, Webb, holding the legal title to the whole quantity, sold to Powell for a valuable consideration all that should be contained within the bounds of his deed from the complainant. Equity will not compel Powell, who was an innocent purchaser,

* to yield his advantage in favor of a latent equity. He was therefore not entitled to the eight acres in specie. That he was not entitled to the value is equally clear. There was no privity of contract between Eve and Powell, upon which an action could be supported : nor was Powell answerable to Webb for the surplus ; by his contract he had his election to take it either by actual survey or at the quantity of 168 acres, as described in the deed to Webb. He made his election to take it at 168 acres. The decree therefore is erroneous, and must be reversed,

The fame principle wjs decided ¡a die cafe of Batts vs. Mocbee, &c. dunas this term.