Hurst v. Taylor

• Decision Date: 19 February 1908
• Citation: 107 S.W. 743
• Parties: HURST ET AL. v. TAYLOR ET AL.
• Court: Kentucky Court of Appeals

107 S.W. 743

HURST ET AL. v. TAYLOR ET AL.

Court of Appeals of Kentucky.

February 19, 1908

Appeal from Circuit Court, Knox County.

"Not to be officially reported."

Suit by Lucy Taylor and others against Calvin Hurst and others. From a decree for plaintiffs, defendants appeal. Reversed and remanded.

Wm Low, J. D. Tuggle, and B. B. Golden, for appellants.

F. D Sampson and Dishman & Dishman, for appellees.

HOBSON J.

Appellees who are the widow and children of Harrison Taylor, brought this suit against appellants Calvin Hurst, etc., to restrain them from cutting some poplar timber on a tract of land in Knox county. Calvin Hurst and his associates claimed the timber under a contract made in 1889 by Harrison Taylor with E. F. Arthur. There is no controversy as to the title to the land. All the parties admit the title to the land to have been in Harrison Taylor. The only question in the case is what rights Arthur took under his contract, and whether these rights had passed to the appellants. The circuit court adjudged the plaintiffs the relief sought, and the defendants appeal.

The deed from Taylor to Arthur is in these words:

"This indenture made and entered into this June 21, 1889, by and between Harrison Taylor and his wife, Mary Taylor, of the county of Knox and state of Kentucky, of the first part.

Witnesseth, that for and in consideration of twenty-eight hundred and forty-four dollars, in hand paid by E. F. Arthur, party of the second part, the receipt of which is hereby acknowledged, by the parties of the first part, the parties of the first part hereby alien, sell and convey unto the said E. F. Arthur of the second part, sixteen hundred and twenty-five poplar trees, be the same more or less, all of which are standing in Knox county, Kentucky, on the waters of Stinking creek, except a few which stand on the waters of Straight creek, in Bell county, Kentucky, in the John Hollow Gap, being the poplar timber which the parties of the first part executed a bond to E. F. Arthur on March 4th, 1889, and being the poplar timber owned by the parties of the first part on the 4th day of March, 1889, all of which trees are marked A, and also those that are not marked, on the lands above mentioned, except those on the Buck Hollow and the field adjoining it and also except those below where he heretofore branded, all of said timber stands on Stinking creek and the waters thereof, except those standing on Straight creek.

It is further stipulated and agreed that for and as part consideration of the amount aforesaid stated that the said E. F. Arthur is to have all necessary roads and rights of way to and from said lands and timber and over same to said timber for the purpose of removing and hauling the same away and off of said premises, and also the right and privilege to cut, saw and manufacture same on the lands hereinbefore described, also to build dams on the streams to run said timber off of the lands without additional cost to the said E. F. Arthur, so as to not interfere with any growing crops, this timber shall be removed in a reasonable time and the possession privileges returned back to the parties of the first part. The parties of the first part hereby covenants and warrants the title to the said timber unto the said E. F. Arthur with covenant of general warranty. The said Mary Taylor hereby joins in this conveyance and grants and relinquishes all the rights inchoate or otherwise that she has or may have unto the party of the first part."

After this deed was made there was some dispute between Arthur and Taylor as to what their rights were, and in 1898 the following written contract was entered into: "This contract, made and entered into this March 28, 1898, between E. F. Arthur and A. A. Arthur of the first part, and Harrison Taylor, of the second part: That upon a final settlement on the Harrison Taylor timber the said parties of the first part agree to pay to the second part $175 in disputed poplar timber sold by said Taylor to the said Arthur, lying and being on the right-hand side of the creek, as you come down the creek, at the prices the said Arthur paid the said Taylor for said timber. If not enough of said disputed timber to pay said $175, said Taylor is to have enough on the same side to finish the amount of the $175. The said Taylor also relinquishes all his claim to all the poplar timber branded, and also the unbranded timber from 7 feet and upwards in circumference that the former deed calls for." Arthur, and those claiming under him, cut a large portion of the timber, and he then sold and conveyed what was left upon the land to Grant Taylor on September 28, 1899.

Appellants Calvin Hurst and his associates claim under Grant Taylor in this way--they claim that Grant Taylor made a deed to his wife, Docia Taylor. After Grant Taylor's death she married Jesse Brock, and after her marriage with Brock she conveyed the timber to appellants. All the transfers are produced except the deed from Grant Taylor to his wife. The proof for appellants is that after she married Brock, one night about 11 o'clock the...