Isham Talbot v. William P. Bowen
| Decision Date | 09 April 1819 |
| Citation | 8 Ky. 436 |
| Parties | ISHAM TALBOT <I>v.</I> WILLIAM P. BOWEN. |
| Court | Kentucky Court of Appeals |
This suit was brought in chancery by Bowen, to obtain a title to a moiety of a lot of ground in the town of Henderson, the equity whereof is asserted by him through a certain William Featherston, who, it is alleged, purchased it from the son and agent of Talbot.
The purchase of Featherston is admitted by the answer of Talbot, but the authority of his son to sell the land, is denied; and if authorised, it is contended, that owing to his son's infancy, and the inadequacy of the consideration for which the sale was made, a specific execution of the contract ought not to be inferred.
On a final hearing, the court below being of opinion that Bowen was entitled to relief, pronounced a decree appointing commissioners, and ordering them to convey the lot, without making their conveyance depend upon the failure of Talbot to execute a deed.
The main objection taken to the relief sought in the bill, involves the propriety of decreeing an execution of the contract, without evidence in writing, of the terms of Featherston's purchase from the son of Talbot.
As the contract was for the sale of land, there is no doubt but, according to the plain and obvious import of the statute against frauds and perjuries, that Talbot might have required written evidence of the terms of sale; but this, we apprehend, could have been done in no other way than by either denying of the sale, or pleading, or relying upon the statute, in his answer.
Upon a denial of the sale, as it would have devolved upon Bowen to have proven it, the evidence should, no doubt, to authorise a decree in his favor, conform to the requisitions of the statute; or upon the statute being either pleaded or relied on in the answer, then, as evidence of the sale should also be introduced, proof of its terms having been reduced to writing, would, most clearly, be essentially necessary to entitle Bowen to relief.
But in the present case, as the purchase of Featherston is admitted by the answer of Talbot, and as the statute is not relied upon by him, it cannot, either for the purpose of proving the sale, or taking it out of the statute, have been necessary for Bowen to introduce any evidence whatever in relation to the terms of sale. The failure, therefore, to manifest, by writing, the...
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