17 Ky.L.Rptr. 608
Court of Appeals of Kentucky.
Oct. 1, 1895.
ACTION: Reversed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by Robert Ledford and another against H. P. Gilbert. Judgment for plaintiffs. Defendant appeals.

The appellant, Gilbert, owned land on Richland creek, in Knox county, Ky. He sold and deeded to the appellees, Ledford and Howard, a certain boundary of land on that creek, for the sum of $4,200. The description of the land in the deed is as follows, to wit: "Beginning on a black oak standing on the southwest side of Big Richland creek, near Bodkin's grain yard; thence, a southwest course, a straight line to a white oak standing on the bank of the creek; thence from a white oak to an elm standing on the other side of the creek; thence, with the leading spur, a straight line to the top of the mountain; thence, with the top of said mountain, to the Mary Jane Gilbert line; thence, with her line, down the point to an oak and elm standing on bank of creek, below Mary Jane Gilbert's; thence, a straight line, to the corner of Mary Jane Gilbert's fence, near the public road; thence, west with the thirty- six thousand acre survey, to the top of the hill of the Schoolhouse branch; thence, running with the thirty-six thousand acre survey, crossing the Schoolhouse branch between the Schoolhouse branch and Double branch; thence down the ridge to the beginning." A certain other small tract is embraced in the deed, but it is not necessary to describe it. It is alleged in the petition that the appellant represented that the deed contained all the land which he owned on Richland creek; that since the execution, delivery, and acceptance of the deed, they (appellees) have learned that the deed does not convey all the land which they bought of appellant; that he fraudulently left out of the deed (which fact he fraudulently concealed from them) about 40 acres in a certain hollow which appellant then owned, adjoining the boundary described in the deed, and which was worth $250; that appellant has since deeded the same to other parties. This action is to recover in damages the value of the 40 acres which it is claimed should have been embraced in the deed. The trial of the case resulted in a verdict and judgment against the appellant for $200.

Several grounds for a reversal of the judgment are urged. On the trial, over the objection of appellant, the court allowed John and Elisha Vaughn to prove that at a date anterior to the sale to appellees the appellant wanted to sell to them his land, and pointed it out to them so as to include the hollow in question, and that appellant told them that he wanted to sell the tracts together. This occurred in the absence of the appellees, and before the appellees had seen the land, and before the negotiations began between them and appellant which resulted in the sale. The testimony was incompetent, and prejudicial to the appellant, and the court should not have permitted it to go to the jury. That the appellant might have desired to sell both boundaries to the Vaughns is not evidence that he did sell both to the appellees. The jury must have given great weight to this evidence. The appellees were witnesses, and testified that the appellant told them that he was selling them all the land he then owned on Richland creek. They also testified that appellant, at the time of the trade, pointed out to them the lines as described in the deed, and that they were on some of them; and that the 40 acres in question lies on the outside and to the right of the leading spur, and back of the top of the mountain mentioned in the deed. They do not testify that appellant claimed, when they purchased the land, that the hollow in question formed any part of the tract which he was selling them, or that it should be embraced in the deed. They do claim that the deed inaccurately describes the lines to the boundary of land which they purchased. The basis of the claim of appellees is that appellant said he was selling them all his land he owned on Richland creek, when, as they claim, he at the time owned 40 acres besides the boundary described in the deed. How were the appellees injured by such representation, if untrue, when the appellant conveyed them the entire boundary of land, the lines to which he pointed out when the trade was made? If appellant had pointed out the lines to the boundary so as to embrace the 40-acre tract, and, as a matter of fact, the boundary embraced in the deed did not include it, the appellees would have had cause for complaint. A vendor might represent to his vendee that he was selling and conveying him all the lots which he owned in a block in a certain town, yet if he pointed out the lots sold, and particularly described them in the deed to the purchaser, certainly the fact that the vendor did own other lots in the block would not entitle his vendee to have them conveyed to him, or, in the event of a sale thereof, to receive, in damages, their value.

Before the sale to appellees, it appears from uncontradicted testimony, the appellant had made an agreement with H. B. Helton that, if he would find a purchaser for appellant's farm, he would deed Helton the hollow. Helton brought the appellees to appellant to purchase the land, and the appellant regarded that when the sale of the farm was consummated he did not own the hollow. In pursuance of this agreement, he conveyed the hollow to Helton. The verdict is clearly and flagrantly against the evidence.

The judgment is reversed, with directions that the court grant appellant a new trial, and that further proceedings be had in conformity to this opinion.

Ky.App. 1895.
32 S.W. 223, 17 Ky.L.Rptr. 608


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