Breckinridge v. Moore, &C.

• Decision Date: 01 June 1843
• Citation: 42 Ky. 629
• Court: Kentucky Court of Appeals
• Parties: Breckinridge <I>vs</I> Moore, &c.

Page 629

42 Ky. 629

Breckinridge vs Moore, &c.

Court of Appeals of Kentucky.

June 1, 1843.

ERROR TO THE FAYETTE CIRCUIT.

JUDGE BRECK delivered the opinion of the Court.

IN January, 1840, Breckinridge executed his note to John Steele for one thousand dollars, payable to said Steele or order on the 1st January, 1841. The note was dated at Nashville and signed by Breckinridge as being of Fayette county, Kentucky.

In April, 1840, the note was assigned by Steele to Moore, who obtained judgment thereon against Breckinridge, in the Fayette Circuit Court.

Breckinridge then exhibited his bill against Moore and Steele and obtained an injunction against the judgment. He alledges in his bill, that the note in question and two blooded mares, estimated at $500, were given in consideration of the purchase by him of a tract of land of Steele; that the trade was made, mares delivered, and note executed in Nashville, Tennessee, and solely upon the representations of Steele in reference to the land. The land was represented by him as lying in Boone county, Kentucky, near the Big Bone Lick, and containing about 4500 acres, and entered in the name of Eggleston and Todd, and adjoining the lands of Thomas Connely, and the grant to Eggleston and Todd referred to for the boundaries; that he had derived title to the land through a deed made to him by the Clerk of the Circuit Court of Hopkins county, Kentucky, as Commissioner. The foregoing representations being part of the recitals in the deed made by Steele to Breckinridge, at the time of the trade. It is further alledged by Breckinridge, that Steele represented he had been on the land a few years before; that he had a regular chain of title from Eggleston and Todd, and had also peacable possession of the land. He charges that the representations thus made by Steele, were false and fraudulent; that he had no title to any portion of the land patented to Eggleston and Todd; that the deed from the Commissioner did not even purport to convey any portion of the land in the grant of Eggleston and Todd but 2000 acres in the name of Richard Eggleston; that the grant to Eggleston and Todd was to Edward Eggleston and Robert Todd; that there was no grant to Richard Eggleston, and he had owned no land as described in the deed of the Commissioner to Steele; that the claim of Eggleston and Todd was covered by adverse claims and had long been so held, except a small portion held by their heirs; that so far as related to the land in the bounds of Eggleston and Todd's grant, the deed from Steele was utterly void; that Steele was insolvent and resided in Tennessee; that he had assigned the note to Moore, Broaddus & Co. who in the name of R. S. Moore, the defendant, and one of the firm, had recovered the judgment in question; that all the alledged facts were in the knowledge of Steele and Moore. It is also alledged by Breckinridge, that he had never seen the land — knew nothing in relation to it, or of the title of Steele, except from his representation. He prays a perpetual injunction and a rescission of his contract with Steele, and brings into Court and tenders to Steele and Moore the deed made to him by the former.

Steele and Moore answered, both denying the material allegations of fraud, and both rely, as evidence of what the representations were by Steele, as to his title and as to the particulars of the trade between Steele and complainant, upon an article of agreement, which Steele states, "to save a law suit and all misunderstanding, he was induced to write and have signed," and which they file as an exhibit, and pray to have read as evidence. Steele denies that he ever saw or was upon the land sold to complainant. Moore states that the note in contest was traded to Moore, Broaddus & Co. by Steele; that he was himself a member of the firm, and that the assignment was filled up in his name to facilitate the collection. He denies that it was known by him or the other members of the firm, when they traded for the note, for what consideration it was executed, but insists that it was traded for in good faith, for value received, and was a fair business transaction. It is not controverted that the note was executed by the complainant in consideration of the land sold by Steele to him.

Amended answers are subsequently filed by each of the defendants, in which they aver that the whole trade and transaction, from which the note in contest originated, took place in the State of Tennessee, where the defendants and all the members of the firm of Moore, Broaddus & Co. then and still reside. Defendant, Moore, denies that he or said firm had notice of any defence to the note, or objection to its payment on the part of complainant, and alledges "that the note was negotiated to him or his firm in the State of Tennessee, and that by the statute and laws of Tennessee the said negotiation and indorsement of said note gave it the effect of a bill of exchange or other mercantile instrument, and prevent and bar all the defence set up by complainant, as against the present holder thereof, as by said laws he will be able and ready to show."

The Court dissolved complainant's injunction and dismissed his bill, and by writ of error, he has brought the case before this Court for revision.

The first question obviously arising for consideration is, whether the transaction between the defendant, Steele, and complainant, in the sale of the land and procuring the note in contest, was or not, on the part of the former, fraudulent, and such as to render the note void? The deed from Steele to complainant; the note and the article of agreement, referred to by the defendants, all bear date on the same day, and it is admitted that the deed and article of agreement, as also the answer of defendant, Steele, are all in his hand writing. The deed is drawn in the usual form, and recites, "that for and in consideration of the sum of $1500, to me in hand paid, I have this day bargained and sold, and by these presents do bargain, sell and convey unto the said Breckinridge, all that tract or parcel of land, situate and lying in Boone county, near the Big Bone Lick, Kentucky, and containing about four thousand five hundred acres, be the same more or less, and entered in the name of Eggleston and Todd, and adjoining the lands of Thomas Connely and others, and for the calls of said tract of land I refer the said Breckinridge to the grant registered at Frankfort, Kentucky, in the name of Eggleston and Todd, which beginning and call will correspond to my title, which I now convey to him."

The deed then recites that said tract of land was purchased by one Neil McLean, and after passing through different persons, was sold under a decree of the Hopkins Circuit Court, Kentucky, with other tracts, by a Commissioner, and purchased by him, the defendant, Steele, to whom the Commissioner conveyed the land sold in Boone county, "and for as much land as was sold according to said deed, I hereby sell and convey to said Breckinridge."

We have not deemed it necessary to state all the recitals in the deed, but only such as will render apparent the land sold and the character of the deed. It is declared to be a special deed; that he only sells his special title, and is to warrant against all persons claiming under him, but against no other claims.

The record of the Chancery suit in the Hopkins Circuit Court, in which the decree referred to in the foregoing deed was rendered, together with the Commissioner's deed to Steele, are made exhibits in this case. From an inspection of that record, it results, that in 1818, McLean purchased, for the direct tax, two thousand acres of land, on Big Bone, in Boone county, returned and sold as the claim of Richard Eggleston, and for which McLean obtained the collector's deed in 1821.

There was no other land in Boone county named in said suit or decreed to be sold or conveyed to defendant, Steele, except the 2000 acres of Richard Eggleston, so purchased by McLean. The Commissioner's deed to Steele was made in 1832. It is evident then that the recitals in Steele's deed to complainant, and which were written by the said Steele himself, are a gross misrepresentation of his claim as derived from the Commissioner's deed, not only as to its extent but character. But again — the grant to Eggleston and Todd is an exhibit in this case, from which it appears that Edward Eggleston is the patentee, instead of Richard; that it contains four thousand seven hundred acres, and the proof is that the land lies in the county of Boone, a few miles from Big Boone creek and adjoining a survey of Thomas Connely.

The tract described in the deed from Steele to complainant corresponds, therefore, with the description of the land embraced in this grant and with the proof of its location; and as the proof is that there was no claim of land in Boone County, on Big Bone, in the name of Richard Eggleston, it follows that Steele had no title or color of title to any portion of the land, which, by his deed he sold and conveyed to complainant, unless this claim of Richard Eggleston may be presumed in some way to be connected with, or as being part of the grant to Eggleston and Todd. In his deed, letters to the complainant upon the subject, and answers, he seems to regard it in that light. But although we should indulge in a charitable presumption to that effect, still the misrepresentation in the deed would be palpable, as he sells the whole tract in the grant to Eggleston and Todd, and as containing forty-five hundred acres, when his title through the Commissioner only calls for two thousand acres. He does not intimate in his deed that there was only two thousand acres, or that there was less than four thousand five hundred acres, except after stating his purchase from the Commissioner, and conveying clearly the idea, by every thing in the deed preceding, that he purchased the whole claim of Eggleston and Todd, he says, "and for as much...