Eversole v. Eversole

• Decision Date: 24 February 1905
• Citation: 85 S.W. 186
• Parties: EVERSOLE v. EVERSOLE et al.
• Court: Kentucky Court of Appeals

85 S.W. 186

EVERSOLE v. EVERSOLE et al.

Court of Appeals of Kentucky.

February 24, 1905

Appeal from Circuit Court, Leslie County.

"Not to be officially reported."

Action by Preston Eversole against Clark Eversole and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Lewis &amp Calvert, for appellant.

Logan &amp Jeffries, for appellees.

PAYNTER J.

In 1891 the appellant sold the appellees a tract of land situated on Wooten Creek, Leslie county, Ky. and executed and delivered to them a title bond therefor, by the terms of which he covenanted to convey the land to them by deed with a covenant of general warranty. A note was executed by the appellees to the appellant for $339, the balance of the purchase money. After all the purchase money had been paid except about $150 the appellees discovered that previous to their purchase the appellant had conveyed to Arthur D. Bright all the coal, gas salt water, oil, and mineral rights of every description in upon, and under the tract of land. The appellant instituted the action upon the note which had been executed by the appellees for the purchase money, less the sums previously paid on it. Appellees resisted the payment upon the grounds that the appellant could not comply with the terms of his title bond, because he had previously divested himself of certain interest in the land to Bright. The court refused to enforce specific performance of the contract, but decreed a rescission upon equitable terms. The deed by the terms of which the mineral rights, etc., were sold to Bright was executed by W. T. Browning and wife and appellant and his wife, and was duly recorded, but the index book made it appear that W. T. Browning and wife alone were the grantors in the deed. It is earnestly urged by counsel for the appellant that the index should have put the appellees on inquiry, and therefore they should have discovered that the appellant had previously divested himself of the title to the mineral rights, etc., in the tract of land which they purchased, and therefore it is insisted that the contract should have been enforced. If the case was made to turn upon the question of notice--and we do not think it does--Bright would either lose the interest which he purchased in the land or the appellees would do so. The appellant would be the gainer, regardless of which of the others might lose. So the proposition is that the appellant should have specific...