Tipton v. Brown

• Citation: 117 S.W.2d 217,273 Ky. 496
• Parties: TIPTON v. BROWN et al.
• Decision Date: 13 May 1938
• Court: Court of Appeals of Kentucky

117 S.W.2d 217

273 Ky. 496

TIPTON v. BROWN et al.

Court of Appeals of Kentucky

May 13, 1938

Appeal from Circuit Court, Franklin County.

Suit by Mary C. Tipton against James Brown, director of fish and game, and others for specific performance of a contract to purchase land. From a judgment of dismissal, plaintiff appeals.

Reversed with directions.

E. C O'Rear and Allen Prewitt, both of Frankfort, for appellant.

Hubert Meredith, Atty. Gen., and A. E. Funk, Asst. Atty. Gen., for appellees.

MORRIS Commissioner.

Appellant for some years was engaged in buying and selling real estate on her own account. In the spring of 1937 she had prospective purchasers for a large, inexpensive tract of land, to be well supplied with water, and located on a public highway. Appellant located five or more contiguous boundaries lying in Owen and Franklin counties, apparently suitable to the demands of her clients, the owners of the land giving verbal options on the various boundaries at an agreed price. However, for some undisclosed reason, the prospective purchasers passed out of the picture.

In the summer of 1937, appellant learned that the division of fish and game desired a tract of land for the purpose of establishing a game preserve, and believing the tracts upon which she had options would be suitable for the purpose, she called the attention of the Director of Fish and Game to the boundary in question, and it was inspected. Later, in August 1937, appellant reduced her options to writing, and the Director was again shown the land, and verbally agreed to purchase it for the purpose above mentioned, at a price of $25 per acre.

The foregoing is the background of certain transactions which resulted in a suit by appellant against the Director of Fish and Game, the Conservation Commissioner, the Real Estate Board, Director of Finance, and Auditor and Treasurer of the Commonwealth, seeking specific performance of an alleged contract.

On December 16, 1937, appellant filed her petition making members of the boards and commissions named, and the officers above mentioned, defendants. She described by metes and bounds the two tracts of land involved, and alleged that the Director had purchased same for the purpose set out, and had in writing appropriated the sum of $26,297.50 for payment thereof out of the fish and game, and other available funds. Thereupon appellant (her husband joining) executed and delivered to the Attorney General, in a manner set forth, two deeds conveying two tracts (1,077 acres) and submitted to that officer a true abstract of title, maps, and other data, as required by section 2337a-3, Ky.States., all which she says were approved by an Assistant Attorney General, and delivered in escrow.

It was alleged that on November 5th, the Real Estate Board, by its written minutes, declared the land necessary for the intended purposes, and approved the purchase. Thereupon the Director of the Fish and Game division made requisition against the fish and game fund, presenting same, with voucher for the purchase price, to the Commissioner of Finance, requesting approval for payment, which approval, she says, the commissioner arbitrarily refused to lend.

Appellees demurred to the...