Asher Lumber Co. v. Cornett

• Decision Date: 28 September 1900
• Citation: 58 S.W. 438
• Parties: ASHER LUMBER CO. v. CORNETT et al. [1]
• Court: Kentucky Court of Appeals

58 S.W. 438

ASHER LUMBER CO. v. CORNETT et al. ^[1]

Court of Appeals of Kentucky.

September 28, 1900

Appeal from circuit court, Letcher county.

"Not to be officially reported."

Action by the Asher Lumber Company against James Cornett and others on a covenant of warranty. Judgment for defendants, and plaintiff appeals. Affirmed.

S. B Dishman, for appellant.

Tyree &amp Adams, for appellees.

WHITE J.

The appellant instituted this action to recover on a breach of express warranty of title to 590 trees sold by appellee Cornett. The pleadings present these facts as undisputed Appellee Cornett, some time prior to 1890, sold to one Roark a number of poplar and ash trees marked (4) on a certain boundary of land. Roark sold in April, 1890, to Cross, the same trees, and then appellee Cornett executed a deed to the trees, with a covenant of general warranty of title, and providing for a lien on the land described to make good the warranty. Cross afterwards sold these trees, with many others, to appellant, with covenant of general warranty of title. The trees sold by appellee Cornett were lost to appellant because they stood on land other than as described in the deed, and on the land of another. The answer of appellee presented a question of consideration for the deed to Cross; also as to his mental capacity at the time of the execution thereof in April, 1890; but, in our view of the case, both these questions are immaterial. In all warranties of real estate the covenant runs with the land, and any person upon losing the land may sue any vendor, immediate or remote, and recover from such vendor the amount received by him for such realty. This rule does not obtain as to personalty. The covenant of warranty is personal to the purchaser, and he alone may sue his vendor on the warranty. In our opinion, the judgment of the circuit court is correct, for the reason that when the trees were counted, marked, and sold, to be cut and removed they were treated as, and became, personalty, and the writing executed by appellee for the trees was but what is commonly called a bill of sale of personalty; and, while it contained an express warranty of title to the trees, this is not a covenant running with the trees, but was merely personal to Cross, and therefore no right of action existed in the appellant by reason of its purchase of the trees from Cross with a like covenant. Judgment affirmed.

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