Stark's Heirs v. Cannady

• Decision Date: 10 June 1823
• Citation: 13 Ky. 399
• Parties: Stark's Heirs v. Cannady.
• Court: Kentucky Court of Appeals

13 Ky. 399

Stark's Heirs v. Cannady.

Court of Appeals of Kentucky.

June 10, 1823

AN APPEAL FROM A DECREE OF THE BOURBON CIRCUIT COURT.

HARDIN for appellants;

TALBOT and BLEDSOE for appellee.

1. A verbal contract for the sale of lands, is within the statute of frauds, and so is a parol submission to arbitrators, of controversies respecting the title to land. 1.

2. Our statute of frauds only forbids the enforcement by suit, of trusts and equities created by verbal contracts, and not such as result from the nature of the transaction by implication of law. 2.

3. Where the contracting parties have each occupied the lands agreed to be exchanged under a parol contract for exchange neither can recover rents of the other; but,

4. In such case, an estimate ought to be taken (on a decree declaring such parol exchange void) of the lasting improvements made by each party, but in their then deteriorated condition, and in proportion as the value of the land is enhanced by them, and a balance struck. 4.

OPINION

THE COURT.

Statement of the case.

This was a bill filed by Cannady against Stark, to coerce a conveyance of 108 acres of land in Bourbon county, 50 acres of which he claimed under a bond executed by Stark to Kirthly, assigned by him to Creek, and by the latter to Cannady, and four acres by purchase from Stark himself; but as to these 54 acres, the controversy was adjusted between the parties, during the progress of the cause, and need not be further noticed. With respect to the remaining 54 acres Cannady alleges that on the 11th of July, 1794, he advanced to Stark $60, with which he was to purchase for Cannady land, upon as good terms, and as convenient to Cannady, as he could; and he exhibits a written receipt of that import signed by Stark. He charges, that Stark purchased of Pickett in Virginia, whither he was then about going with that view, 300 acres, part of a 5,000 acre tract lying near to where they lived, at the price of £ > > > > > 100, and paid to Pickett the $60 which he had advanced, in part of the price; that shortly afterwards, Stark had the 300 acres surveyed, and laid off for him, as part of the purchase, 54 acres; that an agreement was made between them, whereby he agreed to let Stark have these 54 acres for another tract of 54 acres adjoining the land on which he lived, and that Stark accordingly laid off to him 54 acres, the possession of which he has had ever since; but that Stark, not long after this agreement to exchange began, showed a disposition to dispute Cannady's right, unless he would contribute his proportion of the expenses which Stark had laid out in relation to the title, and that they at length agreed to submit the controversy to arbitrators, who awarded that Stark should convey the land, and that Cannady should pay his proportion of those expenses; and he alleges that Stark owed him, on other accounts, a sum equal to his part of the expenses, and agreed to settle it in that way; but that he has since refused to do so, and has brought suit and recovered judgment in ejectment against his tenants on the land. He prays for a conveyance of the land, and if that cannot be obtained, compensation for his improvements, and for general relief.

Stark in his answer, admits that when he was about going to Virginia to purchase the land of Pickett, Cannady furnished him $60, for which he was to have a part of the land; and that he made the purchase of 300 acres, and on his return had the same surveyed, and laid off for Cannady 54 acres; but he does not admit that any part of the money advanced by Cannady was paid for said land; and he alleges that in addition to the hundred pounds, he was to render other services for Pickett in relation to the title of the 5,000 acre tract, as a consideration of the 300 acres, and that he never agreed to convey to Cannady the land laid off for him, unless he would contribute his proportion of the charges and expenses incurred in relation to the 5,000 acre tract, which Cannady always refused to do. This he avers gave rise to the controversy, which was verbally referred to arbitrators, with whose award he was willing to comply, and insists upon Cannady's failing to do so. He answers evasively as to the agreement to exchange; alleges that the reference and award were in relation to the land purchased from Pickett, and that the land claimed by Cannady under the exchange, was not within the 300 acres so purchased. He admits that Cannady has had possession of it; but alleges that it was only recently before the commencement of this...