Court of Appeals of Kentucky.
Jan. 15, 1895.
ACTION: Affirmed.

Appeal from court of common pleas, Knox county.
"Not to be officially reported."
Action by James M. Elliott against the heirs of Nancy Dowis.
Judgment for plaintiff, and defendants appeal.

On the 11th day of February, 1892, James M. Elliott instituted suit in the Knox court of common pleas against Nancy Dowis, averring that he had purchased from her a tract of land in said county at the agreed price of $275, and had paid her $240 thereof, and had tendered to her the residue, and asking that she convey the land to him, or, upon her failure to do so, that he have judgment against her for the $240. The sale was not evidenced by any writing. The defendant died in November after the suit was filed, and without answering. The action was revived against the heirs,and they answered, and agreed to convey the land or perform the contract made by their ancestor, but denied appellee had paid any part of the purchase price of the land except $40. The appellants tendered to appellee a deed that had been executed by Nancy Dowis in her lifetime, retaining a lien for $235. The court below, on final hearing, adjudged that appellee only owed $35, with some interest, balance on the purchase price of the land, and adjudged that he pay same to the clerk for defendant, and that he accept the deed tendered, and plaintiff was adjudged his costs against defendants. Defendants prayed an appeal to the court of appeals, which was granted. Appellants suggest the deed from Nancy Dowis, executed before her death, but not delivered during her life, could not pass the title; but as the heirs by answer agreed to comply with her contracts, and also tendered the deed, we think the title passed to appellee under the judgment of the court below.

Appellants insist that appellee was not a competent witness, and excepted to his deposition. It seems the court below did not pass on the question of the competency of appellee's testimony. Some of the heirs testified in their behalf, and it may well be claimed that under the Code appellee then could also testify; but, in addition to that, the testimony, independent of appellee's statement, establishes the fact that Nancy Dowis agreed with appellee to take or look to her grandson Robert Bengy for the $200 in dispute. It is clear that Robert Bengy received at least part of the timber from appellee, in consideration of which appellee claims that he was to pay Nancy Dowis $200. We think, taking all the evidence together, that it fully authorized the judgment of the court below, and the judgment is affirmed.

Ky.App. 1895.


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