Hill's Adm'r v. Spalding's Ex'r
| Decision Date | 03 October 1864 |
| Citation | 62 Ky. 216 |
| Parties | Hill's Adm'r v. Spalding's Ex'r. |
| Court | Kentucky Court of Appeals |
1. In an ordinary action by an executor, on notes for the purchase money of land sold by him under a power contained in the will, where the vendee pleaded that there was no written memorial of the sale, the executor, although a contingent legatee, is a competent witness to prove that such written memorial was executed.
2. In such case, the vendee, having held possession under his purchase for nearly seven years, paid a part of the price and obtained indulgence for the residue by renewing his notes with security, and a good conveyance of the title having been tendered him pending the suit, would not be relieved by the statute of frauds--especially where his answer does not propose a rescission--even if there had been no written memorial of the contract.
APPEAL FROM MARION CIRCUIT COURT.
HILL & KNOTT, for appellant, cited 1 Rev. Stat, pp. 264 265; Civil Code, secs. 120, 123; 1 Bibb, 203; 6 B. M., 101; 11 B. M., 42; 6 Dana, 337; 2 Marsh., 33; 12 B. M., 603; 1 Green., sec. 392; 3 B. M., 31.
BARNETT & NOBLE, for appellee, cited 12 B. M., 621; Chitty on Contr. p. 306; 2 Marsh., 107; 3 Marsh., 246; 3 Mon., 167; 4 J. J M., 511; 5 J. J. M., 334.
On the 7th of November, 1855, Joseph Spalding, as executor of Thomas S. Spalding, deceased, claiming power under said decedent's will to sell a tract of land of the estate of the testator, made a public sale of it to R. G. Hill, as the highest bidder, on a credit of one, two and three years, in three equal payments, with legal interest from the date of the sale, the purchaser to have immediate possession, to execute three several notes, with a sufficient surety for the price, and to have a bond for a good title to be made on full payment. The notes were accordingly executed, with B. P Hamilton as surety, and Hill, in a few days, took possession of the land, occupied it until his death, near the last of the year 1862, and his surviving family continued to occupy it afterwards. On the 7th of November, 1859, Hill, having made partial payments to the amount of about $3,000, took up the original notes, and gave a single note for the consolidated balance still remaining due, and the same Hamilton was surety in the new note. Early in the year 1862, the executor, by ordinary petition, sued Hill and Hamilton on the last note, alleging that the will had been duly proved and recorded in the county court of Marion, where the land lies, and the testator lived and died, and--making an exhibit of a copy of the will--averred that it fully empowered him to sell the land as he had done in execution of that power. Hill answered, and, not controverting the allegations of the petition as to the will or the power claimed as conferred by it, and admitting the other allegations respecting the sale, the execution of the four notes, and his uninterrupted occupancy and enjoyment of the land, he alleged that there was no bond for title or other written memorial of the sale, and thereupon pleaded the statute of frauds and perjuries. Shortly after the filing of that answer, to wit, on the 5th of July, 1862, Morgan's band burnt the clerk's office and all its records and papers, including the will and the pleadings and exhibits in the said suit. Afterwards a supplemental petition was filed, alleging the foregoing facts, and praying for judgment as in the original petition. In the meantime Hill having died, his administrator, widow and infant children were made defendants, together with Hamilton, the surety-- all of whom--the infants acting through a guardian ad litem --answered as Hill himself had done, and relying on the same plea. During the progress of the case a proper conveyance of the land was tendered and filed. And the deposition of the executor was also filed to prove that, when the original notes were delivered to him, he delivered to Hill a sufficient obligation for a...
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