Stoner v. Taliaferro

9 Ky. Op. 90, 1876 Ky. LEXIS 339

• Court: Court of Appeals of Kentucky
• Decided: April 28, 1876
• Status: Published

Opinion

Opinion by

Judge Lindsay :

It is averred in the petition that the fifty aeres of land in dispute is part of the Platte survey, and that it was allotted to J. M. Doom in the partition of lands of which his father, Ben Doom, deceased, died seized. It is also averred that it is covered by the conveyances of J. M. Doom to Taliaferro and Clark.

The answer does not controvert the fact that said land is embraced by the conveyances just mentioned, and virtually concedes that it is part of the Platte survey. .The pleadings, therefore, settle that appellees are the owners of said land, and entitled to a recovery on account of the admitted cutting of the timber, trees and hoop holes, and the removal of the tan bark, unless either the alleged purchase of Hoglan, of which they had notice, or this averred holding of his heirs at law at the time this conveyance to Taliaferro & Clark were made, defeat their titles.

This tract of land does not adjoin the lands of the Hoglan heirs. They could not, therefore, extend their possession over it by construction. The proof show's very clearly that there was no one living in the tract, and that there was no- settlement or open land upon it in 1859, when Taliaferro and Clark bought from J. M. Doom. Stoner, the ancestor of these appellants, did not commence to purchase the interests of the Hoglan heirs until the year i860, one year after the making of the conveyances by Doom to the persons under whom these appellees claim title. It is manifest that up to1 i860 there had been no actual adverse possession of the lands by the appellants or by the Hoglan heirs.

The defense founded upon the statutes against champertous purchases cannot prevail. Notice to Clark and Taliaferro of the claim of the Hoglan heirs is also ineffectual to defeat the title of the appellees, unless their claim was an enforceable one. The contract between Ben Doom, deceased, and Hoglan was evidently an oral agreement in the beginning.

The receipt of November 16, 1844, is not sufficient to take said contract out of the operation of the statute of frauds. That receipt acknowledges the payment of the purchase price for fifty acres of land, and contains a promise to convey the'same. But it does not pretend tó "describe the land at all, not even stating that it lies in Bullitt county or in the state of Kentucky. Such a writing has uniformly been held to be unenforceable in an action for a specific execution of a contract for the sale of lands, and therefore not such a written memorandum as is required by the statute against frauds. Kay & Casey v. Curd, et al., 6 B. Mon. 100; Ellis v. Deadman's Heirs, 4 Bibb 466; Fugate v. Hansford’s Ex’rs, et al., 3 Little 262; Hanly & Shrieve v. Blackford, 1 Dana 1.

W. R. Thompson, for appellants. R. J. Megler, for appellees.

Appellants failing to defeat the title of the appellees, the judgment for the damages resulting from the trespass followed as a matter of necessity from the pleadings. The amount of the judgment is fully sustained both by the admissions of appellants in their answer, and by the proof in the record.

Judgment affirmed.