Hunter v. Owen

• Decision Date: 19 January 1889
• Citation: 10 S.W. 376
• Parties: HUNTER v. OWEN.
• Court: Kentucky Court of Appeals

10 S.W. 376

HUNTER v. OWEN.

Court of Appeals of Kentucky.

January 19, 1889

On petition for rehearing. For opinion in original hearing, see 9 S.W. 717.

BENNETT J.

The counsel, Judge Hargis, in his petition for a rehearing states that the ""opinion does not deal with the evidence of the appellant and that which he offered in the case, but excludes it from consideration;" and as proof of that fact he says: "We point to the fact that not one word is said in the opinion about the proof that this land and improvements cost Dr. Hunter $337, exclusive of the five acres of bottom which he let her have, valued by Dr. Hunter at $40 per acre. The opinion omits this conclusive evidence of the value of the land, and takes up the opinion of witnesses as to that fact."

Counsel is gravely mistaken when he intimates that the whole evidence as to the value of the land was not considered by the court. Is it possible that counsel is serious in the contention that the price that Dr Hunter chose to pay for the land is "conclusive evidence of its value?" If he had paid $10,000 for the land, instead of $337, would the payment of such sum be conclusive evidence that it was worth that sum? Or if he had paid but 25 cents for it, would it be conclusive evidence that it was only worth 25 cents? The rule in a case of this sort, by which the value of the land is arrived at is to resort to the opinion of witnesses acquainted with the land sufficiently well to form an opinion as to its value from which the court determines whether or not the price paid was adequate, inadequate, or exorbitant. But the price paid in a case like this may be given in evidence, not for the purpose of proving the value of the land, but for the purpose showing that the person paying it believed that the land was worth what he gave for it, in order to repel any presumption of fraud that might arise from asking and receiving an exorbitant price for the land.

As said in the opinion, many witnesses swore that the land and improvements were not worth exceeding $100, a few fixed its value at from $100 to $150, and one or two fixed its value at $150 or $200. Now, we assert most positively that no witness, not even Dr. Hunter, contradicts these witnesses as to the value of the land. All that Dr. Hunter swears in reference to the value of the land is his admission that he told Mrs. Owens that the land was worth $600, and that a part of the land and the improvements cost him $337, which fact he did not communicate to the appellee. But we assert that he did not swear that the land was worth $600, nor did he swear that he believed it was worth that much, nor did he swear that he believed the land and improvements were worth as much as he said he paid for them.

But counsel says that Tom Cheatam sustains Dr. Hunter as to the value of said land. Such is not the fact; for, as just said, Dr. Hunter does not swear that it had any value, and Cheatam says that it was worth $100 or $150 only.

Counsel also contends that G. W. Warran sustains Dr. Hunter as to the value of said land. On the contrary, it is a fact that Mr. Warran does not express an opinion as to the value of the land. What appears in reference to that matter is that Dr. Hunter said he would take $500 for a certain portion of the land, and Warran unhesitatingly agreed to give it, provided an adjoining tract could be purchased. It is evident that he formed no opinion of his own in reference to its value but, as Dr. Hunter asked that sum for it, he seems to have taken it for granted that it was worth that sum.

In this connection it is well to notice what counsel says in reference to the statement in the opinion that Warran relied on the opinion of Dr. Hunter as to the value of the land. After quoting the opinion upon that subject, he says: ""There is not one thing in the testimony of G. W. Warran that shows that he was willing to purchase that land at a price not fixed according to his own judgment." This is bold language. Let us look into its truth.

G. W Warran says that on one occasion he was in town, not for the purpose of buying land, and Dr. Hunter, doubtless knowing that he, too, had drawn a pension, for otherwise he was wholly impecunious, proposed to sell him this land; that he had never seen it, nor did he ever see it again after that day; that they went on horseback to look at it. He was asked: "Did you get off your horse and go over the place?" "No, sir; we sat on our horses up in the big road, opposite a little spring on the left of the road." As just said, this was the only time that he had ever seen the land, which, except a small strip of bottom, is hilly and broken; and, according to the description that he gives of his examination of the land, he did not and could not have formed a reliable opinion as to its value. Nor does he pretend to have formed any opinion as to its value, but relied upon the say so of Dr. Hunter, as his following answers clearly demonstrate: "We did not particularly examine the lines and corners. If he [Dr. Hunter] had have particularly told me where the corners and lines were, I would have trusted to his honor." He is asked: "In a land transaction, would you have left the matter to his word, and trusted to what he said about, it?" ""Yes, sir." In addition to this, Dr. Hunter was his physician, and had attended on him several months at a time, and had his entire confidence. So we repeat that Warran agreed to give $500 for the land, not upon his own judgment as to its value, but relying upon the value that Dr. Hunter presumptively placed upon it by the price that he asked for it. So we repeat that the testimony introduced by the appellee as to the value of the land is not contradicted; but the evidence for the appellee as to the value having been taken before Dr. Hunter gave his evidence, and, when he...