15 Ky.L.Rptr. 231
Court of Appeals of Kentucky.
June 8, 1893.
ACTION: Reversed.

Appeal from court of common pleas, Knox county.
Action by H. B. Lewallen against J. T. Stanfell and others to recover unpaid purchase money on sale of land.
Judgment was rendered for plaintiff, and defendants appeal.

The appellee conveyed to the appellant J. T. Stanfell a lot of ground in the town of Barboursville for the sum of $2,500, and took his note for $2,192.50 for the unpaid purchase money. The note was not paid, and the appellee brought this action against the appellants, Stanfell; T., John W., and George W. Faulkner; Henry Tye; W. J. Campbell; George R. Herndon; and J. H. Logan,-to recover said purchase money, alleging as a cause of action against all of them that they purchased the land jointly, but by their request, and for their convenience, the appellee made the deed to Stanfell, and took his said note, in trust for the other appellants, they agreeing to be bound for said price. The appellants admit the joint purchase of said land, and that they requested the appellee to make the deed to the appellant Stanfell, and to take his note *646 for the price, but they say that they were to own the land in the following proportions: Stanfell, 2-15; T. Faulkner, 2-15; Henry Tye, 2-15; W. J. Campbell, 2-15; John W. Faulkner, 2-15 of 2-15; George W. Faulkner, 1/3 of 2-15; George R. Herndon, 1/3 of the whole,-and that they were to be bound to the appellant for the price in that proportion, to which he agreed. This agreement was in writing, which was made on the occasion of the making of the deed and note. George R. Herndon and Henry Tyre swear positively that the agreement was as above indicated, with the appellee, in reference to their liability for the price. The appellee, on the other hand, swears that it was his understanding from George R. Herndon, with whom he made the contract the day before, that all of the appellants were to be jointly bound for the whole amount of the purchase money, and that the deed was made to Stanfell, and the note executed, as a matter of convenience, only. Now, we have Herndon and Tye swearing positively that such was not the agreement, and the writing they produce as having been made on the occasion of the making of the deed, and to which they say the appellee consented, corroborates their understanding of the matter. The appellee says: "I do not know that all the appellants did individually say that they would pay me the $2,500. They were all present at the time that deed was made, except W. J. Campbell. I do not think that all of them that were present spoke and said they would pay me the $2,500." It will be seen that the appellee gives his understanding, merely, of what the contract was. He is not certain. But the other two witnesses state positively what it was, and the agreement among themselves, made at the time the appellee made the deed to them, corroborates their recollection of the matter. We think that the weight of the evidence upon the subject of the appellants being bound to the appellee in proportion to their respective interests is with the appellants, and that the court should have so adjudged. Taking that view of the case, there can be no question as to the statute of frauds, for the appellants agree that they held their respective interests in the land by a writing, and that they were to pay the appellee for it in proportion to their respective interests.

The judgment is reversed, with directions to sell as much of the land as will pay the debt, interest, and costs, and, if the land be insufficient for that purpose, then to give judgment against the appellants for the balance in proportion to their respective interests in the land.

Ky.App. 1893.
22 S.W. 645, 15 Ky.L.Rptr. 231


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