Malone v. Martin

• Decision Date: 05 February 1887
• Citation: 2 S.W. 909
• Parties: MALONE v. MARTIN.
• Court: Kentucky Court of Appeals

2 S.W. 909

MALONE v. MARTIN.

Court of Appeals of Kentucky.

February 5, 1887

Appeal from circuit court, Caldwell county.

F. W Darby, for appellant.

G. W Duvall, for appellee.

HOLT J.

This action was brought by the appellee, E. B. Martin, on November 6, 1884, to recover from the appellant, W. M. Malone, the undivided half of a tract of land worth not over $300. It appears that R. W. Wake, on November 12, 1869, conveyed it to the appellee and his brother, A. J. Martin, jointly. They allowed their brother to occupy it until about 1879, when he died. His widow remained upon it for two or three years thereafter, at the expiration of which time A. J. Martin leased it out for a year, and, before the expiration of the lease, he sold the entire tract, by title-bond, to the appellant, who, before the institution of this suit, had paid nearly all the purchase money. He now resists any recovery-- First, upon the ground that E. B. Martin, after the purchase from Wake, became largely indebted to his brother A. J. Martin, and surrendered his interest in the land to him, since which time it has been held adversely by the latter; second, he avers that, before his purchase the appellee, knowing he was about to buy the land, assured him that he had no interest in it, and urged him to make the purchase; third, because the appellee, after he became a joint owner of the land, went into bankruptcy, and the register, on June 22, 1878, by writing, transferred all his estate, as provided by the bankrupt law, to an assignee.

A. J. Martin testifies that he informed the appellee that he intended to hold the entire tract by way of part payment of what the appellee was owing him; that if he did not consent to this, that he would bring a suit, and subject it to his debt; and that the appellee told him that he was welcome to it,--to make all he could out of it, and that he would sign any deed, in case of a sale of it. The appellee denies all this, and, even if his statement be incorrect, yet there was no writing between them as to any such transfer of interest. They were joint owners. The possession of one was the possession of both, and the defense of limitation cannot avail the appellant. Neither is his plea of estoppel sustained by the testimony. His own evidence supports it, but contra to it is that of the appellee.

The appellant, however, bought the land in good faith. This is beyond question. Upon the other hand, the appellee, while he contradicts his brother in the statement that the appellee said that he would not claim any part of it, yet he does admit that he told his brother that he was getting a good price for it, and to sell it. This fact, together with the statement of the appellee that he forgot to name his...