Small v. Drabell

Court of Appeals of Kentucky

Small v. Drabell

7 Ky. Op. 181, 1873 Ky. LEXIS 497

DecidedNovember 10, 1873

StatusPublished

This text of 7 Ky. Op. 181 (Small v. Drabell) 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.

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Small v. Drabell, 7 Ky. Op. 181, 1873 Ky. LEXIS 497 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Hardin :

If it be concluded that by the purchase of Woolridge and the payment by Spencer Small of the price of the ground on which the house in controversy was built, and the fact that said Small erected the house, at his own cost, he had such an equitable interest in the house and lot as might have been subjected to his debts, although the written evidence of title, both equitable and legal, was in Wool-ridge; still if with said Small’s sanction or concurrence Woolridge sold and conveyed the property to the appellee, ’through Gardner, in payment of the debt of the firm of Small, Woolridge & Co.,. we-are of the opinion .that the deed of Woolridge passed a good title to the appellee, as against Small and his creditors, whatever may have [182]*182been the state of the possession, and whether it was at the time in the firm, then closing its business, or in Small or Thompson, as his tenant, for in neither of these states of the case could the validity of Woolridge’s deed have been affected by the statute against champertous conveyances. The testimony of Gardner, which is to some extent corroborated, is in effect that Small not only assented to the sale, but directed him to Woolridge to make the sale. Small himself admitted in his testimony that he at one time assented to the making of the sale, conditionally, but says, he withdrew his consent because his partners would not compensate him in notes and accounts in cqmpliance with said condition, but he does not in any distinct form attempt to prove that he notified Gardner of the withdrawal of his consent, but, as to this, he says only that he informed him that if he bought the property he would bring a lawsuit. In view of all the evidence, it seems to us that the conclusion is sustained that Gardner, acting for the appellee, made the purchase and accepted the deed of Woolridge with, and on the faith of the assent of Spencer Small, and the subsequent sale and purchase of the appellant passed to them no right or interest in the property.

Petrie & Reeves, for appellant. Bush, for appellee.

We see no reason why Gardner was not a competent witness when he gave his deposition.

Wherefore the judgment is affirmed.

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Opinion by

Judge Hardin :

If it be concluded that by the purchase of Woolridge and the payment by Spencer Small of the price of the ground on which the house in controversy was built, and the fact that said Small erected the house, at his own cost, he had such an equitable interest in the house and lot as might have been subjected to his debts, although the written evidence of title, both equitable and legal, was in Wool-ridge; still if with said Small’s sanction or concurrence Woolridge sold and conveyed the property to the appellee, ’through Gardner, in payment of the debt of the firm of Small, Woolridge & Co.,. we-are of the opinion .that the deed of Woolridge passed a good title to the appellee, as against Small and his creditors, whatever may have [182]*182been the state of the possession, and whether it was at the time in the firm, then closing its business, or in Small or Thompson, as his tenant, for in neither of these states of the case could the validity of Woolridge’s deed have been affected by the statute against champertous conveyances. The testimony of Gardner, which is to some extent corroborated, is in effect that Small not only assented to the sale, but directed him to Woolridge to make the sale. Small himself admitted in his testimony that he at one time assented to the making of the sale, conditionally, but says, he withdrew his consent because his partners would not compensate him in notes and accounts in cqmpliance with said condition, but he does not in any distinct form attempt to prove that he notified Gardner of the withdrawal of his consent, but, as to this, he says only that he informed him that if he bought the property he would bring a lawsuit. In view of all the evidence, it seems to us that the conclusion is sustained that Gardner, acting for the appellee, made the purchase and accepted the deed of Woolridge with, and on the faith of the assent of Spencer Small, and the subsequent sale and purchase of the appellant passed to them no right or interest in the property.

Petrie & Reeves, for appellant. Bush, for appellee.

We see no reason why Gardner was not a competent witness when he gave his deposition.

Wherefore the judgment is affirmed.

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7 Ky. Op. 181, 1873 Ky. LEXIS 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-drabell-kyctapp-1873.