Wiggins v. Jackson

• Court: Kentucky Court of Appeals
• Writing for the Court: O'REAR, J.
• Citation: Wiggins v. Jackson, 73 S. W. 779 (Ky. Ct. App. 1903)
• Decision Date: 21 April 1903
• Parties: WIGGINS et al. v. JACKSON et al.

73 S.W. 779

WIGGINS et al. v. JACKSON et al.

Court of Appeals of Kentucky.

April 21, 1903

Appeal from Circuit Court, Laurel County.

"Not to be officially reported."

Action by Jarvis Jackson and others against Jack Wiggins and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

James Sparks, for appellants.

H. C Hazelwood, for appellees.

O'REAR J.

Jarvis and Mamie Jackson, infants, by their guardian, A. R. Dyche by parol contract sold the standing timber on a certain tract of land in Laurel county to S. F. Jackson. The timber was not branded, or otherwise identified than by specification of the character and size of the trees to be taken. The vendee was to have two years from the date of the contract to remove the timber. He paid $112 on the purchase price, but died shortly thereafter, and before any of the timber was cut. Subsequently his administrator disclaimed liability for the remainder of the purchase money, relying upon the invalidity of the contract, because it had not been reduced to writing and signed by the parties to be bound thereby. Dyche guardian, settled with him the purchase money that had been paid. Thereafter the timber was sold to others by the guardian, acting, so it is said, under a decree of the Laurel circuit court authorizing the sale for the purpose of maintenance and education of the wards. Appellants, claiming to be the vendees of S. F. Jackson, started to enter upon the land and cut and remove the timber, when Dyche, as guardian and his wards, brought this action and obtained an injunction against the threatened trespass. The circuit court on final hearing perpetuated the injunction.

Standing timber is a part of the realty. It was not sold in contemplation of immediate separation from the soil, and therefore the case is not within the rule announced by this court in Cain v. McGuire, 13 B. Mon. 341, and Byassee v. Reese, 4 Metc. (Ky.) 372, 83 Am. Dec. 481.

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