Palms' Adm'rs v. Howard

• Decision Date: 21 May 1907
• Citation: 102 S.W. 267
• Parties: PALMS' ADM'RS v. HOWARD. [a1]
• Court: Kentucky Court of Appeals

102 S.W. 267

PALMS' ADM'RS v. HOWARD. ^[a1]

Court of Appeals of Kentucky.

May 21, 1907

Appeal from Circuit Court, Magoffin County.

"Not to be officially reported."

Action by Francis F. Palms' administrators against Calloway Howard. From a judgment in favor of defendant, plaintiffs appeal. Reversed and remanded.

D. D Sublett, Worthington & Cochran, Keena, Lightner & Oxtoby, and W. S. Pryor, for appellants.

J. J C. Bach, for appellee.

HOBSON J.

On October 2, 1890, E. B. Webster and wife, in consideration of $95,000, conveyed to Francis F. Palms, as trustee, a tract of 19,000 acres of land granted to May & Martin by the commonwealth by patent dated June 10, 1873. Palms lived in Detroit and employed Calloway Howard as his attorney and agent in Kentucky to look after the land; Howard agreeing "to do all in his power to protect said lands from trespassers and prevent the cutting or removing timber from said lands or the mining of coal upon or under said lands by any persons not authorized so to do by said second party, and said Howard further agrees to keep constant and careful watch of said lands and to ascertain and report forthwith to said second party all trespasses or attempted trespasses on said land. Said Howard further agrees to ascertain the amount of all taxes levied on said lands as soon as they become payable and to render to second party statements thereof, and to attend to the payment of the same for said second party, and also to use his diligent efforts in reducing the assessments of said land to a fair cash value so as to reduce the taxes on the same. Said Howard further agrees to render said second party every assistance in his power in effecting a sale of said lands or parts thereof; to answer all communications from said Palms, his attorney, or from any person desiring to purchase said lands or any part thereof; to furnish to said second party complete abstracts of title to said lands, and to recommend to all inquiries said second party's title thereto; to assist in surveying said lands and to furnish said second party with a full description of said land including estimates of timber thereon and the coal therein with certified samples of coal and timber from said land." Palms paid Howard $100 a month for his services. On May 7, 1905, Palms died in Michigan, and appellants qualified there as the administrators of his estate. They brought this suit against Howard on December 27, 1905 charging in effect that Howard had rendered no services, that Palms had no title to the land, and that Howard, knowing the facts, concealed the truth from Palms and collected the money from him month by month fraudulently; the allegations of the petition being in effect that the deed to Palms passed no title and that Howard knew this, and, knowing there was no land to care for, had in fact concealed the facts and defrauded Palms. Howard filed an answer, denying the...