Weller v. Fidelity Trust & Safety Vault Co.

• Decision Date: 23 October 1901
• Citation: 64 S.W. 843
• Parties: WELLER et al. v. FIDELITY TRUST & SAFETY VAULT CO. [1]
• Court: Kentucky Court of Appeals

64 S.W. 843

WELLER et al. v. FIDELITY TRUST & SAFETY VAULT CO. ^[1]

Court of Appeals of Kentucky.

October 23, 1901

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by the Fidelity Trust & Safety Vault Company against John M Weller and others, trustees, to enforce a vendor's lien. Judgment for plaintiff, and defendants appeal. Affirmed.

J. H Eaton and Isaac T. Woodson, for appellants.

Helm Bruce & Helm, for appellee.

PAYNTER C.J.

On May 1, 1890, B. B. Nesbit, in consideration of $3,450, $1,150 of which was cash in hand paid, and for the balance of the purchase money two notes were executed for $1,150 each payable in one and two years, respectively, with interest from date, payable semiannually, conveyed to the trustees of the Twenty-Second and Walnut Streets Baptist Church of Louisville a certain parcel of land situated at the corner of Twenty-Sixth and Market streets. The notes were assigned to the appellee shortly after they were executed, and nothing has been paid on them except interest to a certain date. This action was instituted to enforce their payment. The deed describes the property conveyed as follows: "Beginning at a point in the center of Twenty-Sixth street where it is intersected by the south line of Market street, and running thence eastwardly with the south line of Market street one hundred and fifteen (115) feet; thence southwardly and parallel with said Twenty-Sixth street one hundred and seventy-seven (177) feet, more or less, to Congress street, if extended; thence westwardly with said Congress street one hundred and fifteen (115) feet, to the center line of Twenty-Sixth street (not dedicated); and thence northwardly with the center line of said Twenty-Sixth street (not dedicated) to the point of beginning, about one hundred and seventy-seven (177) feet." It is insisted that the appellee is not entitled to recover on the notes because a strip 15 feet wide was in the adverse possession of the city of Louisville at the time the conveyance was made; that the consideration of the notes, to the extent of the value of the piece thus adversely held, was illegal, and this partial illegality of consideration vitiates the whole; and, if this is not true, then it is claimed there should be an abatement of the notes to the extent of the value of the strip of land claimed to be adversely held. It is insisted upon behalf of appellee that the strip of land in question was a part of...