Nevels v. Kentucky Lumber Co.

• Decision Date: 24 May 1900
• Citation: 108 Ky. 550,56 S.W. 969
• Parties: NEVELS et al. v. KENTUCKY LUMBER CO. [1]
• Court: Kentucky Court of Appeals

56 S.W. 969

108 Ky. 550

NEVELS et al. v. KENTUCKY LUMBER CO. ^[1]

Court of Appeals of Kentucky.

May 24, 1900

Appeal from circuit court, Pulaski county.

"To be officially reported."

Action by George M. Nevels and others against the Kentucky Lumber Company to recover damages for breach of contract. Judgment for defendant, and plaintiffs appeal. Affirmed.

G. W Shadoan, for appellants.

O. H Waddle, for appellee.

HOBSON J.

Appellants made a contract with appellee to get out for it 500 poplar logs, to be delivered in Big South Fork, or Little South Fork, or Big Sinking Creek, in Pulaski county, by the 1st day of September, 1893, and to be there received and measured by appellee. It was a part of the contract that when as many as 100 logs were ready appellee was to receive and pay for them. Appellants got out a number of logs, and called on appellee to receive them, but when it was about to do so it received notice that the logs were not the property of appellants, and declined to receive them. This suit was brought by appellants to recover damages of appellee for its failure to receive the logs. The proof shows that the logs were cut from a tract of 300 acres of land which was owned by five or six parties as tenants in common; that the owner of an undivided one-fourth of the land sold the poplar timber on the land to appellants without authority from the other owners; that the owners of another fourth of the land notified appellee not to receive the logs; and that the owner of the other half of the land who was a nonresident of the state, was ignorant of the cutting of the timber. If appellants had not good title to the logs, or one which would have protected appellee in receiving and using them, it had a right to decline to receive them. Their only right to the logs was by reason of their contract with one of the joint owners, who clearly had no right or authority to sell anything but his one-fourth interest in the property. Appellants, therefore, by their contract with him, only acquired one-fourth of the title to the timber. In 2 Am. & Eng. Enc. Law, p. 1090, the rule is thus stated: "Joint tenants or tenants in common may, of course, join in a conveyance of the common property, but, one co-tenant not being permitted to do any act which will prejudice the rights of another, a sale made by one will not devest another of his interest in the common property, unless he had been duly authorized to make such sale, or unless the sale was duly ratified by the other tenants. But such a sale is not, as a general rule, void; the purchaser's title attaching to such interest, and only such, as the tenant of whom he purchased was possessed." In Shepard v Pettit, 30 Minn. 119, 14 N.W. 511, the co-tenant had cut logs on the joint...