Stamper v. Cornett

• Decision Date: 08 October 1909
• Parties: STAMPER et al. v. CORNETT et al.
• Court: Kentucky Court of Appeals

121 S.W. 623

STAMPER et al. v. CORNETT et al.

Court of Appeals of Kentucky.

October 8, 1909

Appeal from Circuit Court, Letcher County.

"Not to be officially reported."

Action by Cynthia Cornett and others against John W. Stamper and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Ira Fields, D. D. Fields, and E. E. Hogg, for appellants.

Bailey P. Wootton, Jesse Morgan, and Greene, Van Winkle &amp School-field, for appellees.

O'REAR J.

Prior to 1890 Isom Stamper owned about 15,000 acres of land in the counties of Letcher and Perry. He sold 10,000 or 12,000 acres for about $7,000. He was then very old, and, being much harrassed in mind because of some lawsuits involving his liability on the warranty of titles to some of the land he had sold, he determined to dispose of the remainder of his property. As a matter of fact it is not shown in this suit we now have in hand that there was any legal or asserted liability against Stamper when he made the conveyances in question. Yet he was in such dread on the score that some sort of suit might be brought against him that he put all his property out of his hands. His money he intrusted to his son L. N. Stamper. He at or about that time made conveyances of his lands to certain of his children, the main body of it to his son L. N. Stamper. The proof shows (so the chancellor found, and we think is sustained by the record in doing so) that he took obligations from the grantees to pay for the lands at the rate of $4 per acre. But these obligations, which were called notes, he delivered to others of his children, and then executed receipts to the ones who had executed the notes showing that they had been paid. The old man died intestate a few years later. Shortly thereafter L. N. Stamper died intestate. Isom Stamper had 12 children. He was survived by all, or their descendants, save two. He had made no material advancements to any of them. This suit is by certain of his heirs against the heirs of L. N. Stamper to recover the purchase price of the land conveyed to him and above mentioned, described as containing about 800 acres. The administrator of Isom Stamper, having refused to prosecute the suit, disclaiming the existence of the debt, was made a defendant. L. N Stamper's heirs defended upon the ground that their ancestor had paid his father for the land conveyed to him. The circuit court found that he had not. In concurring in that conclusion, without extended comment, we set out the evidence tending to support and that tending to refute it. L N. Stamper's heirs rely upon (1) the recitals in his deeds; (2) receipt of Isom Stamper; (3) the testimony of John W. Stamper, a son, and the administrator of Isom Stamper and the testimony of the widow and three sons of L. N. Stamper.

The rule contended for by appellants that a writing which is the evidence of a contract cannot be impeached by testimony as to a contrary parol stipulation does not apply to this case. The statute allows (section 470, Ky. St. [Russell's St. § 1775]) the recited consideration of a conveyance to be shown to be otherwise without an allegation of fraud or mistake and that, too, by parol testimony. Nor do appellants pretend that the recitals in the deed that the purchase money was paid when the deed was executed are true. Their claim is it was paid subsequently. So the statement in the deed that the purchase price had been paid was not only shown to be, but was admittedly, false. John W. Stamper and Wesley Stamper, brother and son of L. N. Stamper, testify that the consideration for the 600-acre tract, called in the record "Sawmill Tract," was $1,000 as recited in the deed. Wesley says he wrote the deed. John W. says he was present. Alex Stamper, another brother of L. N., testified that he was also present, was a party to the arrangement, at least called by his father to witness it, and that the consideration was $4 an acre, but not to be paid until the correct quantity was ascertained. Another tract, called in the record "Cowan Tract," was put in at the same price. John W....