Bird v. Bank of Williamstown

• Decision Date: 29 March 1890
• Citation: 13 S.W. 430
• Parties: BIRD v. BANK OF WILLIAMSTOWN.
• Court: Kentucky Court of Appeals

13 S.W. 430

BIRD v. BANK OF WILLIAMSTOWN.

Court of Appeals of Kentucky.

March 29, 1890

Appeal from circuit court, Grant county.

"Not to be officially reported."

H. Clay White and John J. Landram, for appellant.

Geo. C Drane, for appellee.

HOLT J.

The sale of the 100 acres of land to the appellant, T. A. Bird by the assignor of the note sued upon by the appellee, and which was given for part of the purchase money, was by the acre. The defense as to the balance due upon the note is an alleged deficit of 3 7/8 acres in the quantity of land, and which was purchased at $75 an acre. It appears that the vendor, Northcott, owned what was known as his "Home Place," supposed to contain 75 acres, and through it at the time of the sale ran the Cincinnati Southern Railway. He also owned other land adjoining. The appellant, who then lived several miles away, went and looked at the home place and verbally purchased it. When he did so he saw the railroad running through it, and he says he then agreed that its right of way was to be counted as a part of the purchase. Northcott subsequently refused, however, to let him have the land unless he would not only take the home place, but enough of the adjoining land to make in all 100 acres. To this he assented, and on February 15, 1887, Northcott executed to him a title-bond, stipulating that notes for the unpaid installments of purchase money were to be executed by the appellant on the 1st of March following, and delivered to Northcott whenever a general warranty deed should be made to the land, possession of it to be given on March 15, 1887. On March 1, 1887, the notes were executed and delivered to Northcott, and a deed of the character denominated in the bond made by him to the appellant, who accepted it, and had it recorded. The contract was therefore no longer executory, but an executed one. The appellant claims that the deed was accepted under certain circumstances, and by virtue of certain promises of the vendor, but this is not shown by competent testimony. The latter is dead, and the appellant is not, therefore, a competent witness to prove his statements. The abatement in price now claimed is for an alleged deficiency of three-fourths of an acre in the quantity, and also for three and one-eight acres which Northcott conveyed to the railway as a right of way in 1875, and which by the terms of the deed is to revert whenever it ceases to be used as a...