Hanly v. Blackford

• Citation: 31 Ky. 1
• Parties: Hanly and Shrieve v. Blackford.
• Decision Date: 02 April 1833
• Court: Court of Appeals of Kentucky

31 Ky. 1

Hanly and Shrieve v. Blackford.

Court of Appeals of Kentucky.

April 2, 1833

FROM THE CIRCUIT COURT FOR JESSAMINE COUNTY.

Mr Hewitt for Appellants.

Mr Owsley for Appellee.

OPINION

ROBERTSON CHIEF JUSTICE:

In the year 1800, Benjamin Blackford bought from William Conner, ten acres of land, described in the bond, of that date, for a title, " as adjoining him (Blackford) on the north," without any other designation of boundary or locality. But, ten acres were " laid of" to him bounded on the north by the land on which he lived, and on the west by the road from Nicholasville to Lexington; and of the whole of which he retained the possession and exclusive use from 1800 to some time in 1828, when John H. Hanly enclosed a part of it, which he claims under a deed from William Shrieve to him, for twenty-eight acres and three-quarters, which had been conveyed to Shrieve, in 1814 by Fisher Rice, William Conner and the sheriff of Jessamine, in consequence of a sale under a fieri facias against Rice and Conner, which had been levied on the land as the property of Conner.

Contest for ten acres of land--titles and claims of the parties respectively.

Blackford, having paid for the ten acres which he bought from Conner, filed a bill in Chancery against Hanly, Shrieve, Conner and Jefferson Rice (from whom, as devisee of Fisher Rice, he had obtained a conveyance, in 1821,) praying among other things, that Hanly should be compelled to relinquish to him all his claim or title to the ten acres or any portion thereof, and alleging that Fisher Rice had, in 1794, sold and covenanted to convey to Wm. Conner one hundred acres of land, including the said ten acres; that Conner had paid for the hundred acres, and had resided thereon from 1794, until since the sheriff's sale in 1814; that the said ten acres were publicly and explicitly excepted in the sale by the sheriff, and it was clearly understood that the sale of the twenty eight acres and three quarters, was not to interfere with the ten acres, or disturb his (Blackford's) right thereto; that Shrieve, when he had purchased the twenty-eight acres and three-quarters, had full notice of all the foregoing facts, and that Hanly had the like notice when he purchased from Shrieve, and never put up any claim to any part of the ten acres until 1828.

Hanly's answer does not deny the alleged notice; but Shrieve's answer denies that he had notice as charged. The truth of the allegations as to the manner of selling the twenty-eight acres and three-quarters, and as to Shrieve's notice thereof, and of Blackford's claim and possession, is, however, sufficiently established by the depositions read on the hearing of the cause.

The circuit court decreed that Hanly should convey to Blackford, by deed of " " quit claim," all title to any part of the ten acres as claimed by the latter. To reverse that decree Hanly and Shrieve have prosecuted this appeal.

A contract in writing for the sale of land, which contains no description or reference identifying the land, could not be enforced consistently with the statute against frauds and perjuries.

The chief objection which has been made to the merits of the decree, is, that it is in defiance of the statute against frauds and perjuries, because, as the covenant from Rice to Conner does not designate the hundred acres which were to have been conveyed, and as the bond from Conner to Blackford does not designate the precise position of the ten acres, the true locality can not be given to either tract without resorting to a species of testimony interdicted by the statute.

This objection is, on a superficial view, specious and imposing; but it will not stand the test of a more thorough scrutiny.

The bond from Rice to Conner contains no description or reference which could furnish a clue for identifying...