Elliott v. Walker

• Decision Date: 24 October 1911
• Citation: 140 S.W. 51,145 Ky. 71
• Parties: ELLIOTT v. WALKER et al.
• Court: Kentucky Court of Appeals

140 S.W. 51

145 Ky. 71

ELLIOTT v. WALKER et al.

Court of Appeals of Kentucky.

October 24, 1911

Appeal from Circuit Court, Laurel County.

Action by David Elliott against Lucretia Walker and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Hazlewood & Johnson, for appellant.

Geo. G Brock, W. E. Begely, and Hinkle & Walker, for appellees.

CARROLL J.

The appellant, David Elliott, brought this action in ejectment alleging that he was the owner and entitled to the possession of 25 acres of land, describing it, that was wrongfully withheld from him by the appellees, defendants below. The answer traversed the allegations of the petition, and affirmatively pleaded that the defendants were the owners and in the possession of the land sought to be recovered. In a reply the plaintiff set up that the ancestor of appellees sold and conveyed the land in controversy to his remote vendor, James Sparks, for the consideration of $125, and that Sparks was placed in the possession of the land, and the same continued in his possession and those claiming under him. He prayed in his reply for a recovery of the land, but if that relief could not be granted that he recover $125, with interest from the date of payment by Sparks, and that it be declared a lien upon the land. In a rejoinder the defendants relied upon the statute of limitations as a bar to the right of the plaintiff to recover any part of the purchase money. The case, after being prepared for trial, was submitted for hearing, and a judgment rendered, dismissing the petition.

The evidence shows that in 1891 James Sparks and Marion Walker the husband of appellee Lucretia Walker and father of the other appellees, entered into a parol contract by which, in consideration of a mare and colt and $25 in money, Walker sold to Sparks 25 acres of land then owned by and in the possession of Walker. There was no written evidence of the contract. The evidence further shows that in 1892 or 1893 an effort was made by Sparks to obtain a deed from Walker and his wife for the land, but they refused to make one. In 1893 Sparks, although he had no title to the land, sold and conveyed it by deed to F. P. Elliott, who, in 1907, sold and conveyed it to the appellant, David Elliott. It will thus be seen that the appellant had no title back of Sparks. Counsel for appellant, in view of this condition, abandoned their right to recover the land as sought in the petition, and are now insisting that they should be given a lien upon it for the purchase money paid by Sparks. It seems that the land, although purchased by Sparks in the manner stated, was never separated or set apart by an inclosure from the remainder of the tract owned by Walker, but continued to remain inclosed in his boundary of land. Nor has any person ever lived on the 25-acre tract; but there is some evidence that Sparks cultivated...