Martin v. Martin

• Decision Date: 01 January 1855
• Court: Kentucky Court of Appeals
• Parties: Martin <I>vs.</I> Martin

55 Ky. 8

Martin vs. Martin

Court of Appeals of Kentucky.

Summer Term, 1855.

APPEAL FROM ANDERSON CIRCUIT.

W. W. Penny, for appellant —

G. W. Kavanaugh, for appellee —

COPYRIGHT MATERIAL OMITTED

Judge CRENSHAW delivered the opinion of the Court.

The plaintiff, Josiah Martin, in his petition, alleges substantially, that his land had been sold by virtue of a decree of Court, and that John Draffin had become the purchaser, at a sale made under the decree, for the sum of $87 80; that the purchase had been made at a sum greatly below the value of the land; and that his brother, Edward, having heard of the sale, applied to him, the plaintiff, "to let him have the money, and stated that he would pay it to Draffin and get his transfer, and would take the land and hold it, and tend it for the interest on the amount that he should have to pay for him, until the plaintiff could pay the money back; that he had better do this than to let it stand as it was; that Draffin would, if he could, hold the land, which was worth four times what Draffin had paid for it." The plaintiff further alleges, in substance, that he told his brother, Edward, that Draffin had said repeatedly, that he had bought the land for the plaintiff, and that all he wanted was his money; that he wanted to make nothing out of the plaintiff; that he had indulged him, and still intended to do so; that it was finally agreed between him and his brother, that his brother should see Draffin and pay him the money, and take the land and hold it for him in the same way in which Draffin had held it, except that his brother was to cultivate the land for the use of the money, until it should be paid back to him. Edward Martin afterwards applied to Draffin for the land, and, in the interview between them, Draffin informed him that he had purchased the land for his brother, the plaintiff, and had told him so, and that the plaintiff had agreed to raise the money which had been bid for the land, and take it. Draffin also informed Edward that, if the plaintiff was to have the land, Edward could take it — that he had bought the land for the plaintiff, and his object was for him to have it. Edward replied to Draffin that he would take his (Draffin's) place, and that, when the plaintiff could pay him back the money, he should have the land; and, upon this understanding, as Draffin says, he transferred to Edward the benefit of his bid. Edward afterwards applied to court, and by virtue of this transfer, the court directed the commissioner, who had made the sale, to convey the land to Edward, and it was conveyed to him accordingly.

The defendant, in his answer, does not deny the foregoing facts stated by the plaintiff, but sets out the agreement somewhat variant in this: that the plaintiff was to have only five years in which to pay the sum ($87 80) advanced by the defendant to Draffin for the land; and relies that, the agreement having been made about the year, 1845, the time of redemption had expired about the year, 1850, and no offer had been made to pay the money until about the first of January, 1853. He relies also upon the statute of frauds and perjuries; and this latter defense constitutes the only difficulty in the way of the plaintiff to relief. As to the lapse of time, it is questionable whether five years were fixed upon in the agreement, as the time which the plaintiff should have to redeem in. Draffin says that, in the interview between him and Edward, no time was mentioned as a limit on the right of the plaintiff to redeem. After the agreement had been made between the plaintiff and the defendant upon the subject of the land, and after the defendant had procured the transfer from Draffin, as it appears from the testimony of Long, the defendant, in a conversation with the plaintiff, told the plaintiff that he would give him five years to redeem, to which the plaintiff does not appear to have made any reply. Cleaveland proves that the defendant, in speaking of the transaction, remarked that he had given the plaintiff five years to redeem in. But, there is nothing to show that this period had been fixed upon in the original...