Fain v. Heathman

• Decision Date: 30 May 1913
• Citation: 154 Ky. 174,156 S.W. 1071
• Parties: FAIN et al. v. HEATHMAN et al.
• Court: Kentucky Court of Appeals

156 S.W. 1071

154 Ky. 174

FAIN et al. v. HEATHMAN et al.

Court of Appeals of Kentucky.

May 30, 1913

Appeal from Circuit Court, Fayette County.

Action by the executor of Asa Dodge against Talitha C. Fain and others in which defendant Talitha Fain and another filed a cross-petition against their codefendants Talitha Heathman and others. From a judgment in favor of the executor and denying the relief to defendants on the cross-complaint, they appeal. Affirmed.

R. S Crawford, of Lexington, for appellants.

W. C G. Hobbs, of Lexington, for appellees Heathman.

Jos. S Botts and Falconer & Falconer, all of Lexington, for appellee Dodge's executor.

SETTLE J.

December 18, 1895, the appellants Talitha C. Fain and Thomas A. Fain, her husband, sold to the appellees Talitha Heathman and Joseph Heathman, her husband, two lots in the city of Lexington; the contract being evidenced by the following writing: "This contract made this 18th day of December, 1895, between Talitha C. Fain and Thomas A. Fain, her husband, of Lexington, Kentucky, parties of the first part, and Talitha Heathman, wife of Joseph Heathman, of Lexington, Kentucky, party of the second part, witnesseth: That the said party of the first part, hereby agrees to sell and convey to the said party of the second part, for the consideration hereinafter named, those two certain tracts or parcels of land, described and bounded as follows, both of said tracts being situated in Fayette county, Kentucky: First, the south 20 feet of lot 18 in block 1 of Forest Hill, as shown on pages 38 and 39 of Plat Book No. 1 in the office of the clerk of Fayette county court, fronting 20 feet on the west side of Georgetown street and extending back 125 feet to lot 19 on said block and bounded on the south by lot 17 in the same block, and on the north by 30 feet of lot 18, heretofore conveyed to Maggie J. Warren, and by her conveyed to said parties of the first part hereto; the property above described being the same property conveyed to the first parties hereto by deed from the Forest Hill Land Company, dated October 4, 1892, which is to be recorded in the Fayette county clerk's office. Second, that certain tract of land described as follows: The north 30 feet of lot 18 in block 1 of Forest Hill, as shown on the above-mentioned plat, fronting 30 feet on Georgetown and Elm streets, and running west along Elm street 125 to lot 19, thence south along 19, 30 feet, thence east parallel with Elm street 125 feet to Georgetown street, thence north along Georgetown street 30 feet to the place of beginning; being the same property conveyed to the parties of the first part by Maggie J. Warren et al., by deed dated October 20, 1892, recorded in Deed Book 97, page 553. And when the purchase price hereinafter named is fully paid, according to the agreement herein set out, the first parties covenant and agree with the second party that they will furnish to the said second party a good and sufficient title to the said real estate with covenant of general warranty, by deed duly executed, acknowledged and delivered by the first parties. The second party, on her part, in consideration of the above-named agreement, agrees to pay for the said real estate, to the said first parties the sum of two thousand dollars ($2,000) with interest thereon at six per cent. per annum from this date until paid; but the said purchase money is to be paid as follows: that is to say; the second party has taken out ten certificates in the Southern Mutual Investment Company of Lexington, Kentucky: Now then, the said certificates shall be, and they are hereby, assigned to the said first parties as collateral to secure further the payment of the said purchase price for the said real estate; and the said first parties are hereby authorized to collect all matured coupons on the said certificates and renewals thereof, until they have received said purchase price and interest in full; except this, that enough of the coupons first matured shall be applied to the payment of any and all liens now existing against the said real estate or any part thereof, and when enough coupons on said certificates or renewals thereof shall have matured and been paid to cover said purchase price, after deducting such part thereof as shall be paid to relieve the said real estate herein described from the incumbrance now existing thereon, said first parties covenant and agree that they will execute, acknowledge and deliver to the second party a good and sufficient deed with covenant of general warranty for the said real estate. The second part agrees that she will, each and every month, pay into the said Southern Mutual Investment Company, according to its rules, the dues on said certificates or renewals thereof, that is to say two dollars ($2.00) per month on each of said certificates or renewals thereof; and that she will renew said certificates and coupons thereon as fast as they mature; and if at any time the second party should be in default in any of the said payments for as long as three months then all of the said unpaid purchase price above agreed upon with interest thereon up to that date shall be due and payable, and the said first parties shall have the right to carry the said certificates in the said Southern Mutual Investment Company and to own the same absolutely. The second party agrees to pay all future taxes and insurance on the said property and to keep the said property insured in some reliable fire insurance company, for at least the sum of ...... dollars ($......) until it is fully paid for, the loss, if any, to be made payable to the parties of the first part as their interest may appear. Talitha C. Fain. Thos. A. Fain. J. B. Heathman. Talitha Heathman."

August 9, 1897, the appellants Talitha C. and Thomas A. Fain purchased of Asa Dodge a house and lot in the same city upon the terms and conditions set forth in the following contract "This contract made this the 9th day of August, 1897, between Asa Dodge and Talitha C. Fain and Thomas A. Fain, her husband, all said parties are of Lexington, Fayette county, Kentucky. The party of the first part, Asa Dodge, hereby agrees to sell and convey to the said parties of the second part with all improvements thereon, situated and located on South Limestone street in the city of Lexington, Fayette county, Kentucky, being number 367, adjoining on the south John O'Neill, and on the north ___ Hall for 100 feet, fronting on South Limestone street sixty feet and running northwest parallel lines one hundred and fifty (150) feet; being 60x150 ft., for and in consideration of nineteen hundred dollars ($1,900). And when the purchase price herein named is fully paid according to agreement herein set forth the first party covenants and agrees that he will furnish to the second party a good and sufficient title to the said real estate, with covenant of general warranty, by deed duly executed, acknowledged and delivered by the first party. The parties of the second part on their part, in consideration of the above-named agreement, agree to pay to the party of the first part the sum of nineteen hundred dollars ($1,900) with interest thereon at six per cent. per annum from this date until paid; but the said purchase price is to be paid as follows, that is: The second parties hold a written contract with one Talitha Heathman, wife of Joseph Heathman, of Lexington, Kentucky, for certain real estate in Fayette county, Kentucky, for two thousand dollars ($2,000.00). For the payment of said two thousand dollars said Talitha Heathman has taken out ten certificates in the Southern Mutual Investment Company. Said certificates are to be kept in force until a sufficient number matures to liquidate said two thousand dollars and said interest. In said contract it is stipulated that certain debts against said real estate shall be...