Fitzpatrick v. Ringo

• Decision Date: 22 October 1887
• Citation: 5 S.W. 431
• Parties: FITZPATRICK and another v. RINGO.
• Court: Kentucky Court of Appeals

5 S.W. 431

FITZPATRICK and another v. RINGO.

Court of Appeals of Kentucky.

October 22, 1887

Appeal from circuit court, Menifee county.

A. T Wood, for appellants.

W. H Holt and B. F. Day, for appellee.

LEWIS J.

This action was instituted by S. A. Peters and husband to recover of appellee, Ringo, a tract of about 35 acres, allotted to her in a division under judgment of court of the lands of her father, Thomas Calk, deceased. And he seeks, in a cross-petition against appellants, Fitzpatrick and McCormick his vendors, not a rescission of the contract between them but judgment for $125, the estimated value of the lot, in case of recovery by the plaintiffs. But to entitle him to any judgment at all in his cross-action against appellants, it becomes necessary to reform the deed from them to him; for the lot sued for by the plaintiffs is not thereby conveyed.

He alleges the existence of two reasons for reforming the deed whereby to make them liable on their covenant of warranty. The first is that they, at the time of the contract represented to him that the boundary of land sold by them to him included the lot of 35 acres, and he was thereby induced to make the purchase. The second is that, by mistake, the deed was so written as to only include a tract of about 53 acres allotted in the same division to Mrs. Nesbitt, another heir of Thomas Calk, and purchased of her by appellants. The contract was made and agreed on between Ringo and McCormick, Fitzpatrick not being present. And the evidence shows that McCormick did not reside in the same county where the land is situated, did not know, and informed Ringo he was ignorant of, the location of the northern line of the tract he was selling, which was really the dividing line between it and the Peters lot. And the nearest approach to a representation was the expression of a vague opinion, based, as he informed Ringo, upon information of an indefinite character given by a person (a neighbor of Ringo) residing near to the land. On the other hand, Ringo then, and had for several years, resided within 150 yards of the land, and had every facility, as well as inducement, to ascertain, if he did not already know, where the northern boundary line was. It seems to us it would be trifling with the facts of this case to assume that he was in the least degree misled by any representation of McCormick in regard to the boundary of the land he purchased. And if he...