Hunter v. Keightley

• Decision Date: 20 June 1919
• Citation: 184 Ky. 835,213 S.W. 201
• Parties: HUNTER v. KEIGHTLEY ET AL.
• Court: Kentucky Court of Appeals

213 S.W. 201

184 Ky. 835

HUNTER v. KEIGHTLEY ET AL.

Court of Appeals of Kentucky.

June 20, 1919

Appeal from Circuit Court, Owen County.

Action by M. D. Hunter against William Keightley and others. Judgment of dismissal, and plaintiff appeals. Reversed, with directions.

John W Douglas and Perry & Cammack, all of Owenton, for appellant.

W. A Lee, of Owenton, for appellees.

THOMAS J.

On March 2, 1908, the appellee, and defendant below, William Keightley, purchased from J. K. Sebree a tract of land in Owen county, Ky. which tract was described in the deed by courses and distances, and is stated therein as containing 166 acres and two roods. Some time afterwards defendant sold and conveyed to Judge J. W.

Cammack 43 acres, 1 rood, and 2 poles off of that tract, and on the 8th day of October, 1915, he and his wife executed a title bond to plaintiff and appellant, M. D. Hunter, agreeing to convey to the latter the balance of the tract as soon as the agreed consideration of $8,600 was paid according to the terms of the bond, the last installment of which was to be paid on March 1, 1916, at which time a deed was agreed to be executed to plaintiff. He made the payments according to the terms of the contract as set out in the bond, and on the date agreed upon (March 1, 1916) defendant and wife executed the deed according to agreement in which the land conveyed was described as containing 165 acres and 2 roods, less the amount which had previously been sold and conveyed to Cammack, which was also described. This made the amount of land conveyed by the deed of defendant to plaintiff practically 122 1/2 acres, which was at the rate of $70.20 per acre.

Plaintiff took possession under his deed, and by January 22, 1917, the day on which this suit was filed, he had discovered that instead of there being 122 1/2 acres in the tract conveyed to him, there was only 108 acres, 1 rood, and 16 poles, which made a deficit of a fraction over 14 acres, or between 12 and 13 per cent. of the amount of land described in the deed.

The suit was filed to recover in part for this shortage at the rate of $70 per acre; it being alleged that the purchase was made under the agreement between the parties by the acre at that price. Another paragraph of the petition sought to recover damages which plaintiff claimed he was entitled to because of the existence of a right of way for a distance of about 23 poles and between 40 or 60 feet wide which defendant had on April 1, 1910, conveyed to the Cincinnati, Louisville, Lexington & Maysville Traction Company for the construction of a line of electric railway from Covington, Ky. to Owenton, Ky. and which right of way lay along the pike fronting the land in controversy. As amended the petition asked $990.50 for the shortage in the land and $600 damages because of the existence of the right of way.

The answer denied the allegations of the petition, and averred that the sale of the farm was in gross and without reference to the number of acres contained in it. In answer to the complaint made in the petition about the right of way defendant averred that plaintiff knew of its existence, and further that the deed for the right of way was on record at the time of the sale of the farm to plaintiff, and that, if he did not have actual knowledge, he had constructive knowledge of it, and, still further, that in the deed conveying the right of way it was stipulated that "it is expressly understood and agreed that the construction of this road must be begun in good faith within twelve months from date hereof or this grant will become null and void"; that there had been a forfeiture by the traction company, since it did not begin within 12 months in good faith or otherwise the construction of the road. Still another paragraph relied upon a former suit filed by plaintiff against defendant to recover damages for the right of way, which suit had been disposed of by a judgment in favor of defendant, and that judgment was relied upon as an estoppel; but for some cause that paragraph of the answer was stricken, and the ruling of the court thereon is not before us for review.

The suit was brought in equity, and was tried by the court without the intervention of a jury, and, after hearing the evidence, a judgment was entered dismissing the petition, and to reverse it plaintiff prosecutes this appeal.

We will first dispose of that branch of the case relating to the claim on account of the existence of the alleged right of way to the traction company. But little need be said with reference thereto. Conceding that plaintiff did not know of the existence of the right of way at the time he made the trade for the purchase of the farm (which is exceedingly doubtful), the incumbrance created by the contract for the right of way, so far as this record shows, had expired and had come to naught because of its own terms; for it is both alleged and proven that nothing whatever was done by the company towards the construction of the road within the time provided by the terms of the forfeiture clause contained in the deed to the company. But perhaps a more substantial obstacle to plaintiff's right to recover for this item is that he claims the right to do so (as he must have done) under the warranty contained in the deed, and he does not allege or attempt to prove that he has ever been evicted by the company or any one claiming any rights under the writing creating the servitude of which he complains.

The doctrine is so fundamental in this state, and in real estate law generally, that before a vendee can recover against the vendor upon the warranty he must both allege and prove an eviction, that we...