Noel v. Hays

• Decision Date: 24 November 1897
• Citation: 43 S.W. 432
• Parties: NOEL v. HAYS et al.
• Court: Kentucky Court of Appeals

43 S.W. 432

NOEL v. HAYS et al.

Court of Appeals of Kentucky.

November 24, 1897

Appeal from circuit court, Bell county.

"Not to be officially reported."

Suit by N. B. Hays against H. T. Noel and others to foreclose a vendor's lien. From a judgment for plaintiff, defendant Noel appeals. Affirmed.

Thomas H. Hines, for appellant.

Weller & Hays and Chapman & Sampson, for appellee.

HAZELRIGG, J.

Appellee, Hays, was the owner of a house and lot in Middlesboro, which he sold and conveyed to McDowell & West, retaining a lien for certain unpaid purchase money. Afterwards the house burned, and by an arrangement between McDowell & West and appellant, Noel, the latter erected a valuable house on the lot, with the understanding that he was to own one-half the property, and McDowell & West the other half. Hays subsequently brought suit for his purchase money, and, learning of Noel's alleged interest, made him a party defendant. The defense was then interposed that Hays had agreed to release his lien on Noel's one-half interest in the property, in consideration that Noel build the house in accordance with his contract with McDowell & West. The only proof offered to this effect is the deposition of West, and this is emphatically denied by Hays. The contention of appellant is very improbable but, if equal credit be given the testimony of Hays and West, the burden being on the appellant, he must fail. The chancellor so decided, and the judgment is affirmed.