27 Ky.L.Rptr. 680
Court of Appeals of Kentucky.
April 13, 1905.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Robert Bargo, administrator of John Bargo, deceased, against Larkin Bargo.
From a judgment for plaintiff, defendant appeals.

The appellant, Larkin Bargo, on June 8, 1882, bought of his father, John Bargo, a tract of land, and executed to him his note of that date, payable one day after date, for $100, which sum was what remained unpaid of the consideration. At the same time he received of his father a bond for title, wherein the land was fully described, and a lien retained to secure the payment of the note of $100. The bond also stipulated that the vendor would, by proper deed, convey the land therein described to the vendee upon the payment by the latter of the balance of the consideration expressed in the note. Some years after this transaction the father died, without having made to appellant a deed to the land, as the latter had not paid the note given therefor. The appellee, Robert Bargo, who is also a son of John Bargo, was appointed and duly qualified as administrator of the decedent's estate, following which this action was instituted by him as administrator and heir at law of John Bargo against appellant in the circuit court to recover personal judgment for the amount of the note and interest, and an enforcement of the lien retained on the land by the title bond to secure its payment. The other heirs at law of John Bargo, except the appellant, united with the administrator as plaintiffs in the action. The petition set forth appellant's purchase of the land, the terms of the sale, the execution of the note and title bond, a particular description of the land, the failure of appellant to pay the note, and the readiness and ability of the heirs at law to make a deed conveying him a good and sufficient title to the land upon the payment of the same, but, in the event of his failure to do so, judgment was asked in behalf of the administrator against him for the amount of the note and for the sale of the land to pay same and costs of the action. The petition also contained the averment that appellant, at the time of his purchase of the land in question, was placed in possession thereof by his vendor, and that such possession has been actual and continuous ever since; that he has all the time of such possession claimed it, and yet claims it, under the purchase from his father, and "looked to the said John Bargo for a deed of conveyance to it when he, said defendant, should pay the purchase money aforesaid for it." The answer of the appellant contained several paragraphs. In the first a plea of the statute of limitation of 15 years was relied on. In another he admitted his purchase of the land described in the petition from his father, and that the contract therefor was correctly set forth in the title bond which his vendor executed and delivered to him; also that he had not paid the note sued on which he executed for what remained unpaid of the consideration for the land. It was, in substance, also alleged in the answer that appellant's father and vendor, John Bargo, did not have or own title to about 40 acres of the land appellant purchased of him; that this 40 acres was then and is now in the possession of and owned by one Thomas Mills, and has never been in the possession of appellant; that on account of the loss of this 40 acres of the land purchased by him of his father appellant has never paid the note sued on, and same was and is without consideration; that the 40 acres of land in the possession of Mills was at the time of its alleged purchase of appellant, and is now, worth $500, and by its loss and the inability of his vendor and his heirs at law to convey and give him possession of same as the former contracted to do he has been damaged in that sum, to recover which the answer was made a cross-petition and counterclaim against the appellees, administrator and heirs at law of John Bargo, and judgment asked against them. The affirmative matter of the answer was denied by reply. The circuit, upon hearing, dismissed appellant's counterclaim, and gave appellees judgment against him for the amount of the note and interest, and for the sale of the land in controversy to pay same and the costs of the action.

It is insisted for appellant that the judgment should be reversed upon the ground that the action was barred by the statute of limitation, as the same was not instituted for more than 15 years after the maturity of the note. This contention would have had much more force if appellant's answer had confined his defense to a traverse of the averments of the petition except as to the execution of the note, and a reliance upon the plea of the statute of limitation. But this he did not do. His answer does not contain a sufficient denial of the averments of the petition that his vendor, by title bond, agreed to make him a deed conveying him the title to the land for which the note was executed, or that the vendor died without executing such deed; nor does it deny the further averment of the petition that appellant acquired possession of the land under the contract of purchase evidenced by the title bond, and continued in the possession thereof, all the time looking to his vendor for a deed of conveyance to it when he should pay the note sued on. Upon the contrary, the appellant, by the averments of his answer, confirms the statements of the petition as to his purchase of the land and his possession by virtue thereof, and attempts to avail himself of the benefit of the contract by seeking to recover by way of counterclaim of the heirs at law of his vendor damages for a breach thereof, occasioned by the alleged loss of 40 acres of the land sold to him, which he claims is held by Mills under a claim of title or possessory right superior to his. So, according to his own showing, appellant's possession is not adverse, but that of a vendee in possession. As such, he is not, it is true, demanding a conveyance of the title as stipulated in the bond for title received from his vendor, but is looking to the heirs of his deceased vendor for indemnity for the loss arising from the shortage in quantity of the land he claims to have purchased, which is in the nature of an action for a specific performance in part of the contract against which he pleads the statute of limitation.

The action is in equity, and under the issues made by the pleadings the appellant should not have been permitted to avoid the payment of the balance of the purchase money and yet retain the land. Appellees still hold the legal title to the land, though willing to convey it upon the payment by appellant of the note. Appellant is unwilling to pay the note, but insists upon holding the land, and asks damages for the alleged shortage of the 40 acres in the boundary sold him. His attitude is neither consistent nor equitable. If he would avail himself of the contract to recover for the shortage in the land, he must submit to the enforcement of the lien for the balance of purchase money as provided by the same contract. Appellant's contention that he did not get all the land purchased of his father and which is embraced by the description in the title bond is not sustained by the evidence. He alone testified on that subject in his behalf, and, as his testimony is made up in the main of conversations between himself and his father and vendor, the subsequent death of the latter rendered that much and nearly all of his testimony incompetent; consequently the chancellor could not have considered that part of appellant's deposition. On the other hand, it appears from the depositions of the several witnesses introduced by appellees that appellant received at the time of the execution of the note and title bond evidencing his consent of purchase all the land bought by him of his father and described in the title bond, and that he is yet in the possession of the whole thereof. According to the testimony, which was practically uncontradicted by other competent evidence, there was no deficiency in the land bought by appellant and the chancellor properly so found. In fact, we find no reason for disagreeing with any of the chancellor's conclusions in the case.

Wherefore the judgment is affirmed.

Ky.App. 1905.
86 S.W. 525, 27 Ky.L.Rptr. 680

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