Wolverton v. Baynham

• Decision Date: 13 November 1928
• Citation: 226 Ky. 214,10 S.W.2d 837
• Parties: WOLVERTON v. BAYNHAM et al.
• Court: Kentucky Court of Appeals

10 S.W.2d 837

226 Ky. 214

WOLVERTON v. BAYNHAM et al.

Court of Appeals of Kentucky

November 13, 1928

Appeal from Circuit Court, Fayette County.

Suit by Leslie B. Baynham and others against Charles W. Wolverton. Decree for plaintiffs, and defendant appeals. Affirmed.

Allen Botts & Duncan and John B. Shannon, all of Lexington, for appellant.

E. S Dabney, Smith & Reynolds, and Hunt, Northcutt & Bush, all of Lexington, for appellees.

STANLEY C.

In January, 1928, appellant, Charles W. Wolverton, and appellees Leslie B. Baynham and J. H. Baynham, entered into a contract for the purchase and sale of certain property in Fayette county, for the sum of $19,252.70.

This suit was instituted against the purchaser, Wolverton, for a specific performance of the contract. In defense, the appellant pleaded that the appellees could not convey a clear title to the land as they had contracted to do, for the following reasons: The Baynhams acquired it from Metcalf and wife by deed of January 3, 1927, and Metcalf derived title under a deed of the master commissioner of the Fayette circuit court, of date February 6, 1926, conveying the title of the parties in a suit then pending in that court of W. S Scott v. Mary S. Scott and others; the record and all the papers in the suit had been lost or misplaced, and could not be found; there was nothing in the record of the clerk's office showing the purpose of the suit or the grounds upon which the property was sold; and it further appeared there were some infant defendants in the case whose interest in the property was purported to be divested by the judgment. He asserted that, because of the loss of the papers in that suit, and the possibility of their disclosing the invalidity of the judgment if they should be found, the Baynhams' title to the property was uncertain and under a cloud, and, by reason thereof, they could not convey to him a clear, perfect, unincumbered, fee-simple title of record or a good merchantable title to the property.

By reply the Baynhams averred that the records of the Fayette circuit court showed the necessary and proper steps had been taken in the Scott suit, and, specifically setting out the various orders, pleaded that the judgment was regular in every particular. They denied their title to the property involved in this suit was uncertain or resting under a cloud, and stated they were able to convey a perfect title. The lost record in the Scott suit was practically supplied by the introduction of carbon duplicates of the pleadings, and the testimony of the guardian ad litem, attorneys practicing the case, and the officers of the court.

The judgment recites that, it-

"appearing to the court, from the proof taken herein, that the record in said action has been duly and sufficiently proven, and that all of the parties having any interest in said land were parties to said action and that the court had full jurisdiction of the parties to said action, and that said tract was duly and properly sold pursuant to judgment rendered in said action. and said sale was thereafter confirmed, and that no objections were made to said judgment or exceptions saved to the same; that no exceptions were made to the sale and report thereof made by the Master Commissioner of said Court, and said sale was duly confirmed and said tract was, pursuant to the order of this Court, conveyed by the deed of the Master Commissioner of this Court to the purchaser thereof at said sale, to-wit: Thomas Metcalf, and that said judgment and order of sale and order confirming said sale are now in full force and effect and have never been appealed from nor reversed, it is found ordered and adjudged that the plaintiffs, Leslie B. Baynham and J. H. Baynham, as vendees and owners of said land, claiming under said Thomas Metcalf, are now vested with a clear and perfect, unincumbered, fee simple and marketable title to said tract of land."

The chancellor accordingly decreed a specific performance of the contract, from which judgment this appeal is prosecuted.

The agreement in the executory contract to convey a general warranty title implied the conveyance of a perfect, legal title to the property, and, if the vendors were unable to tender such title, their covenant would be broken, and the appellant, as vendee, would not be compelled to accept the deed, although it did contain a covenant of general warranty. Ethington v. Rigg, 173 Ky. 355, 191 S.W. 99; Devlen on Deeds, §§ 1474, 1477. It will be observed that there is no allegation of fact indicating the vendors did not have a merchantable title to the land, but only a conclusion is stated. It is noted also that appellant did not even suggest the judgment in the Scott Case, or the sale thereunder, was either erroneous or void, but merely asked relief from his contract by saying it might be one or the other. With equal reason any one in any case may say, for example that among the muniments of title there might be a deed executed by one not having mental capacity to make the...