Woodland Cemetery Co. v. Ellison

• Decision Date: 13 April 1904
• Citation: 80 S.W. 169
• Parties: WOODLAND CEMETERY CO. v. ELLISON.
• Court: Kentucky Court of Appeals

80 S.W. 169

WOODLAND CEMETERY CO. v. ELLISON.

Court of Appeals of Kentucky.

April 13, 1904

Appeal from Circuit Court, Whitley County.

"Not to be officially reported."

Action by the Woodland Cemetery Company against J. M. Ellison and others. From a judgment in favor of defendant Ellison plaintiff appeals. Affirmed.

R. S Crawford, for appellant.

Tye &amp Denham, for appellee.

HOBSON J.

The facts of this case are set out in the opinion on the former appeals. See Finley v. Hill, 42 S.W. 735, 19 Ky. Law Rep. 939, and Woodland Cemetery Company v. Ellison, 67 S.W. 14, 23 Ky. Law Rep. 2222. When the case was last here the court said, after holding that the sale to Ellison was void: "But inasmuch as the corporation has received the benefit of his purchase money, they should be required to repay it to him. The court will ascertain the value of the use of the property by Ellison, and the damages done to it if any, by him, and set it off against the interest and purchase price." On the return of the case to the circuit court, proof was taken by the parties on the questions indicated, and on final hearing it was adjudged that Ellison had done no damage to the land; and judgment was entered in his favor for his purchase money, with interest, subject to a credit of $5 a year for the use of the land. The plaintiffs again appeal.

The rule is that ordinarily the chancellor will not order a cemetery sold, but there were only two graves on the land bought by Ellison, and the cemetery company had not paid Freeman the purchase money. Freeman had a lien on the land for his purchase money, and when Ellison paid Freeman he became entitled by substitution to the benefit of Freeman's lien, for the cemetery company and those who bought from them took subject to Freeman's lien, and this was not divested by the payment made by Ellison to Freeman in his purchase from the company.

The proof sustains the chancellor's finding that the land is in as good condition as when received by Ellison. While he cut some trees from it, he also put the land in grass. The trees were not well suited for shade, and, if shade trees are desired, they can be set out. The cleaning up of the land and getting it in grass were of as much value to it as the trees which were cut.

The court properly allowed Ellison interest. The proof as to whether the money was tendered to him was conflicting. But admittedly the tender was not kept good. A...