15 Ky.L.Rptr. 165
Court of Appeals of Kentucky.
PERSIFULL et al. v. BOREING.
May 13, 1893.
ACTION: Affirmed.


Appeal from court of common pleas, Bell county.
Not to be officially reported.
Action by Vincent Boreing against M. J. Persifull and another on a note.
From a judgment for plaintiff, defendants appeal.

LEWIS, J.
The right of appellee to recover amount of the note for purchase price of land, sued on, and to enforce an existing lien upon the land sold by him to appellants, is not controverted in their answer. But they plead and rely on, as a set-off, alleged indebtedness of appellee to them, created under the following circumstances: They were, as alleged, employed by him to run out, in February and March, 1890, land he owned in Bell county, and while doing so, as surveyors, found considerable vacant lands, of which there was a tract of 36 acres that was entirely surrounded by appellee's lands. That he agreed, if they would allow him to have all said vacant land, except the tract of 36 acres, patented to him, he would take the 36 acres, and pay them $396, or $11 per acre, for same, which was subsequently patented to them, and that they did allow appellee to procure patents in his own name for all said vacant lands, except the 36 acres, in consideration that he would take the 36 acres, and pay them $396 therefor. They stated in their answer that they had duly executed and acknowledged, ready for delivery, a warranty deed for the 36 acres; and appellee having refused to accept it, and pay the agreed price therefor, they tendered it to him in court. The relief prayed for is judgment allowing $396 as set-off against the note sued on, or, if that could not be done, that he be required to convey to them the vacant land they had found, and allowed appellee to have patented to himself. May 21, 1891, a general demurrer to the answer previously filed was overruled. But December 22, 1891, plaintiff withdrew his reply, and on his motion the case was submitted; and thereafter a motion of defendants to set aside order of submission, and file an amended answer, was overruled, and judgment rendered for amount of the note sued on. The amended answer differed from the original in that it was stated that plaintiff agreed, if defendants would locate and show the county surveyor five tracts of vacant land aggregating 175 acres, and direct the survey of four of them for plaintiff, that he might have them patented in his name, and would direct the fifth tract, of 36 acres, patented to them, he (plaintiff) would pay them $396, all of which was done, as stated in the original answer.

The cause of set-off, as stated in the original answer, was an alleged parol agreement by plaintiff to purchase of defendants the tract of 36 acres when they obtained a patent therefor, and pay, as purchase price thereof, $396. It is true it is alleged, as part of the agreement, that they were to allow plaintiff to have patented to himself all the vacant land, except the 36 acres. But it is not stated in the original answer how many tracts, nor what quantity of land, they showed to plaintiff, and allowed him to obtain patents for in his own name. Nor is it therein alleged, in terms or in substance, that there was any other consideration for the $396 agreed by plaintiff to be paid, except the 36 acres. So that the contract as stated in the original answer, is, we think, within section 1, c. 22, Gen. St., which provides that no action shall be brought to charge any person upon any contract for the sale of real estate unless it be in writing; and consequently no right to either recover in the original action, or maintain as a set-off the alleged purchase price of the 36 acres, existed in virtue of that contract.

The amended answer not being tendered until the second term after the action was commenced, nor until after the case was submitted, and no reason for the delay in offering to file it having been given, we think the court did not abuse a sound discretion in refusing to permit it filed.

Judgment affirmed.

Ky.App. 1893.
PERSIFULL et al. v. BOREING.
22 S.W. 440, 15 Ky.L.Rptr. 165

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