Creech v. Abner

• Decision Date: 18 March 1899
• Citation: 50 S.W. 58,106 Ky. 239
• Parties: CREECH et al. v. ABNER et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 58

106 Ky. 239

CREECH et al. v. ABNER et al. ^[1]

Court of Appeals of Kentucky.

March 18, 1899

Appeal from circuit court, Lee county.

"To be officially reported."

Action by William Abner and another against Enoch Creech and others to enforce a mortgage lien. Judgment for plaintiffs, and defendants appeal. Reversed.

T. C Johnson, for appellants.

H. L Wheeler, for appellees.

GUFFY J.

The appellees instituted suit in the Lee circuit court, seeking to obtain a judgment against E. G. Creech for the sum of $360, and also claimed a lien, and sought the enforcement of the same, upon a tract of land alleged to have been mortgaged or conveyed to the said Abner to secure the debt aforesaid. The appellants, Enoch Creech and Emily Parsons, were also made parties to the suit, it being alleged in the petition that Parsons asserted some sort of fictitious claim upon the land, and that appellant Enoch Creech held the legal title to the land. It is substantially averted in the petition that appellant Enoch Creech, on the -- day of --, 18--, sold, and by title bond conveyed, to E. G. Creech the said tract of land, and at the time of said sale from Enoch to E. G. Creech he (Enoch) delivered the possession of said land to E. G Creech, and that all the purchase money had been paid. It was also claimed by appellees that they were entitled to have said Enoch Creech convey the land to E. G. Creech, and asked that he be adjudged to do so. The appellant Parsons filed a demurrer to the petition, which was overruled by the court to which ruling the appellant excepted. The substance of the answer of appellant Parsons is a denial that the Abners had any lien upon the land mentioned for the payment of their said alleged debt, or any part of said debt, and also a denial of a sale of the land by Enoch Creech to E. G. Creech or the execution of any writing by Enoch Creech to E. G. Creech requiring him to convey the land to E. G. Creech. It is also alleged in the answer that appellant Parsons had purchased the land front E. G. Creech, and was in the actual occupancy of same at the time of the execution of the alleged mortgage, and that she had continuously lived on same for more than four years last past. It is also claimed that she owes the defendant Enoch Creech some unpaid purchase money on his said land, which he is to convey to her by good and sufficient deed when she pays to him the unpaid purchase price of said land. In conclusion she prays that plaintiffs' petition be dismissed, and that said alleged mortgage be adjudged null and void, and that she have judgment for her costs, etc. The reply is a substantial traverse of all the affirmative allegations of the answer of Parsons tending to show any right in her to hold the land, or any adverse possession thereof, at or prior to the execution of the mortgage. It is further averted in the reply that at the time of the execution of said mortgage by E. G. Creech he was living on said land, and in the actual possession of same; that he had purchased said land from his co-defendant, Enoch Creech, and had paid all the purchase money therefor, and was by Enoch Creech placed in the actual possession of said land, and had been in the actual possession as the owner of said land for more than 20 years before the execution of said mortgage; and that appellant Parsons had at all times recognized the mortgage of plaintiffs, and that it was her intention to pay off said mortgage as soon as she collected some money of one Lunsford. Enoch Creech also filed his answer, in which he denied that plaintiffs had any lien under or by virtue of their alleged mortgage, and denied plaintiffs' right to have their alleged debt against the defendant E. G. Creech, or mortgage, adjudged a lien on said land, or any part of it, and denied that he ever sold the land in controversy to E. G. Creech, or ever executed any writing to that effect. The substance of his answer is that he had made a conditional verbal trade with E. G. Creech, by which, if E. G. Creech paid certain sums of money to him, he would sell the land to E. G. Creech; but he alleged that no such payment was ever made. The plaintiffs, in their reply to the answer of Enoch Creech, denied that he only allowed and permitted his brother, E. G. Creech, to live on said land as tenant, or that he only allowed him to use and occupy said land. It is further alleged that at the time that Enoch Creech sold the land to his brother, E. G. Creech, that he (Enoch) received some of the purchase money thereon, and put the said E. G. Creech in possession of said land, and that he (E. G. Creech) lived thereon from the -- day of --, 18--, up to the time of the execution of said mortgage, and afterwards until he sold or entered into some sort of arrangement with his co-defendant Parsons; that said E. G. Creech owned, claimed, and had possession of said land from the date of his purchase, claiming the same to a well-defined marked line and natural...