Herr v. Martin
| Decision Date | 13 September 1890 |
| Citation | 90 Ky. 377,14 S.W. 356 |
| Parties | HERR et al. v. MARTIN. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Butler county.
"To be officially reported."
B. L D. Guffy and W. S. Taylor, for appellants.
A. A James and H. T. Clark, for appellee.
The appellants allege in their petition and amended petition that they are the owners of a certain tract of land in Butler county; that they are non-residents of the county and have not the possession of said land, and the appellee has not the possession of it; that in 1882 they "sold" said land to the appellee, for which he was to pay the sum of $600; that they sent a deed of conveyance, acknowledged etc., to the Morgantown Deposit Bank, to be delivered to the appellee, but he refused to accept the same, because he had in the mean time fraudulently procured the deputy-sheriff of said county to sell said land for a supposed tax of $3.70 for 1881; that said land had not been listed for taxation that, by reason thereof, the sheriff had no right to sell the same; that the appellee fraudulently "procured and induced" the said deputy to sell said land for said tax, etc., and, the appellee having purchased the same, to make him a deed therefor. He asks that said deed be set aside, etc. A demurrer was sustained to the petition and the amended petition, upon the ground, it is supposed, that the appellant, not being in the possession of the land, could not maintain an action to have this fraudulent sale of his property set aside. The legislature of this state, in 1854, empowered any person having the legal title and possession of land to proceed by action in equity, etc., against any person setting up claim thereto, to establish his title to said land, and, if established, to quiet the same. There was a similar statute of this state before the adoption of the Revised Statutes. The statutes have been construed to confer a right in the nature of an action " quia timet." Such action has been held by some courts to be in favor of persons not in the possession of the land to quiet title to it, where the adversary was not in the possession of it, upon the ground that it was the only remedy to redress the injury to the title; but the legislature of this state has limited the right to institute such action to persons in the possession of the land, and having a legal title to it. It is supposed that the legislature limited the right to sue to...
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Childers v. York
... ... Plaintiffs ... admit the above undeviating rule, but they seek to bring ... themselves within the doctrine of the case of Herr v ... Martin, 90 Ky. 377, 14 S.W. 356, 12 Ky. Law Rep. 359, ... which has been followed by this court in the cases of ... Tucker v. Witherbee, ... ...
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Gibson v. McGurrin
...213; Spithill v. Jones, 3 Wash. 290; Plant v. Barclay, 56 Ala. 561; Daniel v. Steward, 55 Ala. 278; McLean v. Presley, 56 Ala. 211; Herr v. Martin, 90 Ky. 377; Branch Mitchell, 24 Ark. 439; Alton & M. F. Ins. Co. v. Buckmaster, 13 Ill. 205; Smith v. McConnell, 17 Ill. 135. Holtz v. Bergmann......
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Williams v. Thomas
... ... defendant to seize and fraudulently appropriate the ... particular title under which the plaintiff claims. Herr ... v. Martin, 90 Ky. 377, 14 S.W. 356, 12 Ky.Law Rep. 359; ... Tucker v. Witherbee, 130 Ky. 269, 113 S.W. 123; ... Elam v. Alexander et al., 174 ... ...
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Cooper v. Williamson
...all the evidence and pass upon the question of superiority of title. Childers v. York, 187 Ky. 332, 218 S. W. 1027; Herr, etc., v. Martin, 90 Ky. 377, 14 S. W. 356. This raises a question as to the exact nature of appellants' pleading. In the record it is indexed as the "answer and counterc......