Fornash v. Antrobus

• Decision Date: 11 January 1918
• Parties: FORNASH v. ANTROBUS.
• Court: Kentucky Court of Appeals

199 S.W. 781

178 Ky. 621

FORNASH v. ANTROBUS.

Court of Appeals of Kentucky.

January 11, 1918

Appeal from Circuit Court, Grant County.

Action by William E. Antrobus against Sarah E. Fornash. Judgment for plaintiff, and defendant appeals. Reversed.

C. C Adams, of Williamstown, for appellant.

J. J Blackburn, of Williamstown, for appellee.

MILLER J.

On January 8, 1916, the appellee, Wm. B. Antrobus, sold and conveyed to Mrs. Sarah E. Fornash, the appellant, 43 acres of land for $950. Antrobus had theretofore bought the land from Richard Faulkner, who held a vendor's lien for $659.20. At the time of her purchase Mrs. Fornash paid Faulkner $450 and she subsequently paid Antrobus $50 on the purchase price. On March 8, 1916, she paid Faulkner the further sum of $169.20, making her total payments aggregate $669.20, leaving a balance of $280.80 still due. Up to this point there is no controversy between the parties. But in this action by Antrobus to enforce his lien for the $280.80 balance, which he claims was due him, Mrs. Fornash pleaded payment. The reply controverted all payments in excess of $669.20 as above indicated. It is further claimed in the petition that the deed to Mrs. Fornash had been delivered to Arnold to be held by him in escrow until Mrs. Fornash should pay all of her purchase money, and that she had fraudulently procured it from Arnold, and had had it recorded. This, however, is unimportant in view of the fact that the rights of no intervening creditor have been affected, and no further consideration need be given it. Upon the motion of Antrobus the action was transferred to the common-law docket "to try the issues of fact." Upon a trial under instructions which submitted the whole case to the jury, it returned a verdict for the plaintiff in the sum of $290.09, whereupon the court entered a judgment against Mrs. Fornash for that sum and enforced the plaintiff's lien. Mrs. Fornash appeals.

It will be observed that the order transferring the case to the common-law docket to try the issues of fact spoke in general terms; it did not refer any specific issue for the determination of the jury. In effect it transferred the entire case to the common-law docket, and it was there so tried. The only issue of fact was that of payment, and the proper practice would have been to order an issue out of chancery and submit only that question to the determination of the jury. Consolidation Coal Co. v. Vanover, 166 Ky. 175, 179 S.W. 43. Instead of directing the jury to return a general verdict, the trial court should have instructed them to return a specific finding on the question of payment. Bannon v. Patrick Bannon Sewer Pipe Co., 136 Ky. 574, 119 S.W. 1170, 124 S.W. 843.

The reason for the rule is apparent. The chancellor does not submit the entire case to the jury; on the contrary, he retains the case, and only asks the jury's advice upon certain questions of fact, which should be specifically submitted and answered. In Ayers v. Sneed's Adm'r, Sneed's Pr. Dec. 164, the court said:

"A chancellor, in order to inform his conscience as to any point arising in a cause, has a right to direct an issue to be tried as to that point, but in doing so the inquiry ought to be confined to the single point, and if more than one point arises the different points ought to be specially and particularly stated, and the jury in their verdict should answer to each separately; therefore the court below erred in submitting the whole case arising upon the allegations contained in the bill and answer."

The same rule was applied in Petty v. Malier, 15 B. Mon. 592. In the Bannon Case, after referring to Ayers v. Sneed and Petty v. Malier, supra, and stating that the legal issues should be tried by a jury, and that the findings of the jury should be special to enable the court to decide the case, the court further said:

"We know of no case where this court has ever expressed a contrary view, and, under the authority of the

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