Bush v. Madeira's Heirs

• Decision Date: 10 October 1853
• Citation: 53 Ky. 212
• Court: Kentucky Court of Appeals
• Parties: Bush <I>vs.</I> Madeira's heirs.

53 Ky. 212

Bushvs.

Madeira's heirs.

Court of Appeals of Kentucky.

October 10, 1853.

APPEAL FROM THE KENTON CIRCUIT.

Judge MARSHALL delivered the opinion of the court.

We suppose it is not very material whether the pleading, in which Bush prays for a review and reversal of the decrees therein mentioned, is called a petition or a bill. If it contain sufficient matter to authorize a review of the decrees complained of, the question whether the mode of proceeding is to be regulated by the Code or by the pre-existing practice, is one that will arise subsequently. The material question on the demurrer is whether the matter alleged is sufficient to authorize a review; and this question is argued, on all sides, with reference to the pre-existing principles and practice of courts of equity on this subject, which have not, as we suppose, been changed by the Code.

The demurrer admits, for the purpose of testing their sufficiency, the facts stated in the petition or bill; but the exhibits referred to must be taken into view, as controlling any statement which is inconsistent with them, except so far as the exhibits are themselves directly impeached.

The nature of the decrees now brought in question, and of the proceedings on which they were founded, is fully detailed in the opinion of this court, rendered in the case of Madeira's heirs v. Hopkins, &c. 12 B. Monroe, 595. It is sufficient now to state, that in 1831, Hopkins filed his bill against the administrator and the infant heirs of Madeira, claiming to have purchased from Madeira, in his lifetime, four lots 234, 235, 236, and 237, in the town of Covington, situated on the north side of fifth street, between Greenup and Sanford streets, and also the block or parcel of ground on the opposite side of fifth street, extending to the southern boundary of the town, and professing to exhibit a bond for title to the said lots and ground, setting forth the terms of purchase, and alleging payment of the price, except a sum paid into court, obtained a decree for conveyance, and a commissioners deed for the land. In 1848, after having sold the whole or nearly the whole of this land, to various purchasers, who had made valuable improvements thereon, Hopkins filed a second bill against Madeira's heirs, alleging the purchase as before the loss of the bond, the payments made, and praying for a confirmation of his title, which might not be valid under the first decree. To this bill the heirs of Madeira answered, denying that their father, Jacob Madeira, had ever made any written contract for the sale of any part of said land, admitting that they had learned from his memoranda or books, in which he kept regular statements of all sales, &c., that he had made some verbal agreement about the sale of said lots 234, 235, 236, and 237, at the price of two hundred dollars. But they deny that there was any written agreement in reference to them; and aver that there was no contract, verbal or written, for the sale of the ground on the south side of fifth street. They made their answer a cross-bill, alleging errors and irregularities in the former suit; and to obtain possession made the purchasers from Hopkins' defendants, and among them Bush, who, in his answer, claimed to be an innocent purchaser, set forth his claim under a bond from Hopkins to J. M. Gaines, including the four lots above mentioned, and some of the ground on the opposite side of fifth street, and an agreed partition between Gaines and himself, by which the lets 235, 236, and 237 were allotted to him; and he claims these lots, and one other on the south side of fifth street, on the ground of the purchase of Hopkins, and relies on his allegations, and on the bond, and on long and peaceable possession.

On the hearing, the circuit court decreed a conveyance from Madeira's heirs to Hopkins for the whole of the land claimed by him, and dismissed their cross-bill. But this court, in the opinion above cited, reversed that decree, and also the decree in the suit of 1831, and being of opinion that the terms of the alleged bond were not sufficiently proved, sent back the case, with directions to dismiss the bill of Hopkins and to take an account of rents and improvements, &c., preparatory to a final disposition of the case upon the cross-bills. That opinion was rendered on the ____ January, 1852.

On the 21st day of July, 1852, Bush, with the leave of the court, filed this petition for a review. The petition states, briefly, the proceedings above mentioned, and states, that at the close of the preceding term of the circuit court in which it was filed, the opinion and mandate of the court of appeals being certified to that court, an order was made in conformity therewith, directing commissioners to ascertain and settle on account of rents, &c. And the plaintiff states, that since the rendition of the reversed decree, and since the reversal of that decree by this court, he has learned, that on the 30th November, 1828, Jacob Madeira entered into an agreement with said Hopkins for the sale of the four lots 234, 235, 236, and 237, for the sum of two hundred dollars, of which fifty dollars were paid in cash, and the residue was to be paid in six, twelve, and eighteen months, which agreement was reduced to writing and signed by said Madeira, who, at the sametime, made a provisional agreement with Hopkins for the sale of the ground south of fifth street, believed also to have been in writing, but of which sufficient evidence has not been found. He states, also, that since the rendition of said decrees he has ascertained that said Madeira, about the 15th day of April, 1829, wrote a letter to Warder and Brothers, of Philadelphia, to whom he was accountable for sales of certain lots and lands in Covington, including those now in question, in which letter he set forth the sale which had been made to Hopkins, (stating by mistake the name as J. Hopkins instead of Wm. Hopkins,) of the four lots above described, specified the terms of sale as above stated, and acknowledged the receipt of $50, which he accounted for to said Warder & Brothers; and he refers to the affidavit of J. G. Arnold to show that William Hopkins was intended instead of J. Hopkins. He states, further that since the rendition of said decrees he has learned, for the first time, that a copy of this letter, statement, and account, comprised in the letter book of said Madeira, was...