Burkholder v. Farmers' Bank of Kentucky

• Decision Date: 22 April 1902
• Citation: 67 S.W. 832
• Parties: BURKHOLDER v. FARMERS' BANK OF KENTUCKY. [1]
• Court: Kentucky Court of Appeals

67 S.W. 832

BURKHOLDER v. FARMERS' BANK OF KENTUCKY. ^[1]

Court of Appeals of Kentucky.

April 22, 1902

Appeal from circuit court, McCracken county.

"Not to be officially reported."

Action by the Farmers' Bank of Kentucky against J. H. Burkholder to enforce a vendor's lien. Judgment for plaintiff, and defendant appeals. Affirmed.

Greer &amp Reed, for appellant.

J. D Mocquot, for appellee.

O'REAR J.

Appellee sold appellant, and conveyed to him by a deed with covenant of general warranty, a tract of 533 acres of land in McCracken county. The consideration was $9,000, $3,000 of which was paid and the residue secured by notes. Appellant having made default in the payment of these notes according to the terms of the deed, this action was brought to enforce the vendor's lien. Appellant defended, claiming that appellee had failed to put him in possession of 7 3/4 acres of one corner of the land, which deficit lay in such an irregular shape as to mar the appearance and value of the whole tract. This 7 3/4 acres was alleged to be in the adverse possession of one Pryor. Pryor was made a party, and set up his claim, asserting title to the parcel in question. Upon final hearing he was adjudged to be the owner of that parcel. There is no appeal from that judgment. Appellant asserted that he had intended to subdivide the tract into smaller farms, which could not be done so conveniently or so profitably because of this interference. He asked to be allowed to rescind the contract, or, in lieu thereof, that he be given damages to the extent of $1,500 for the deficit. The land at the time of the sale was all in forest, and uninclosed, except the small quantity in question. There is no pretense that there was any fraud in the transaction, so far as appellee was concerned. Appellant cut and removed the timber from the land, which was of considerable value. He also had sold 200 acres of it and conveyed it. He had made some improvements on parts of it. His vendee of 200 acres offered to reconvey, if the court should adjudge a rescission of the contract.

We are of opinion, from the proof in this case, that the 7 3/4 acres was of no greater value upon the average than the remainder of the tract, and that, as compared with the whole tract, it was too insignificant, in the absence of fraud, and in the absence of knowledge upon the part of the vendor, appellee of the uses to which appellant contemplated to put the land to justify...