Salyer v. Johnson

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Salyer v. Johnson, 107 S.W. 210 (Ky. Ct. App. 1908)
• Decision Date: 21 January 1908
• Parties: SALYER v. JOHNSON ET AL.

107 S.W. 210

SALYER v. JOHNSON ET AL.

Court of Appeals of Kentucky.

January 21, 1908

Appeal from Circuit Court, Johnson County.

"Not to be officially reported."

Action by Robert Johnson and others against Shanklin Salyer. From a decree in favor of plaintiffs, defendant appeals. Reversed and remanded.

C. B Wheeler, for appellant.

Wells &amp Wells, for appellees.

CLAY C.

In the month of February or March, 1886, Louisa Johnson purchased from James Hall, with the proceeds of pension money which she had received from her husband, who was a soldier in the Civil War, a small tract of land in Johnson county, Ky. The deed was made to her and her five children. She and her children then took possession of the land, and continued to occupy the same until September following. She then decided to sell the land, and, with that purpose in view, went to Hall, in company with appellant, Shanklin Salyer. She destroyed the deed which Hall had given to her and her children, and requested Hall to convey the land to appellant. This Hall did. Some time thereafter she died, and this action was instituted by her children, Robert Johnson and Julius F Johnson, by his next friend, Robert Johnson, to recover the land in question. The petition sets forth the above facts, and charges that the conveyance to appellant was fraudulent, and that appellant took the same with full knowledge of all said facts. Appellant presents two defenses: (1) That Hall had no title at the time of his conveyance to Louisa Johnson and her five children. (2) That appellant, and those through whom he claimed, had open, notorious, adverse, and peaceable possession of the land for more than 15 and for more than 30 years. To appellant's answer appellees filed a demurrer.

It apears from the record in this case that Jackson Salyer originally owned the land in question. A portion of it he sold to F. N. Lemaster. This conveyance was by title bond. Lemaster sold the land so purchased to Plymoth Daniel, but executed no deed therefor. Jackson Salyer, at Lemaster's request, made deed to Plymoth Daniel. The latter did not record this deed, but destroyed it. He sold the land to Hall but made no deed. At Plymoth Daniel's request, Jackson Salyer made deed to Hall. The remainder of the land was purchased by Miller Fairchild from Joe Salyer, who had a deed from his father, Jackson Salyer, and his wife, but this deed was not acknowledged. Joe Salyer returned the deed to Jackson Salyer, who, together with his wife, made a new deed to Fairchild, which was never acknowledged or executed in the presence of attesting witnesses. Fairchild sold the land to Hall, but did not make him a deed, gave the deed back to Jackson Salyer, and directed him to make deed to Hall, which he did. Fairchild never recorded his deed--supposes it was destroyed. It is the contention of counsel for appellant that, if the second deed made by Hall to appellant be invalid, because Hall had previously conveyed to Louisa Johnson and her five children, the title of appellees is invalid for the same reason; for Jackson Salyer, who conveyed to Hall, had previously conveyed all the title that he had to the land in question to others, and at the time of the two conveyances to Hall he had no title to convey. As both appellant and appellees claim through a common grantor, James Hall, it is manifest that the character of Hall's title can be considered only as it affects the question of limitation. The question presented is: Does a party who holds an unrecorded deed part with his title to the land described in the deed when he destroys his deed, and requests his grantor to make conveyance direct to his vendee? We think unquestionably that he does, upon the ground of estoppel. The law will not permit him, after parting with his title under such...