| 24 Ky.L.Rptr. 813 |
|---|
| Court of Appeals of Kentucky. |
| TURNER v. TROSPER et al. |
| Oct. 22, 1902. |
| ACTION: Affirmed. |
Appeal from circuit court, Knox county. "Not to be officially reported." Action by Green B. Turner against Jemima Trosper and others to compel specific performance of a contract to convey land. Judgment for defendants, and plaintiff appeals. O'REAR, J. Appellant brought this suit against the heirs of Franklin Trosper, deceased, based upon two writings alleged to have been executed by the said Trosper to compel the conveyance of two small tracts of land in Knox county. The petition alleges that the plaintiff had fully paid the purchase price for this land to the decedent in his lifetime, and that the decedent had executed to plaintiff the title bonds exhibited with the petition, but had failed to make a deed in accordance therewith. One of these bonds bears date March 15, 1870; the other, August 14, 1881. Decedent died in 1885. The parties were neighbors. The heirs denied the sale of the land to appellant, and charged that the bonds sued on were not the act and deed of the decedent, but that they were forgeries. The circuit court, upon the evidence, found that they were not the acts and deeds of the decedent. We are of opinion that his finding is warranted by the facts in the case. Indeed, it is conclusively shown that neither the body of either of the bonds, nor the signatures thereto, is the handwriting of the decedent. Appellant's testimony is so unsatisfactory on the question of the execution of these papers as to leave no doubt in our minds that they are not the acts of the decedent. It is argued for appellant, however, that the answer does not say that the decedent did not authorize any one to sign the bonds for him. While this is true, yet appellees did say in their answer: "Now they say that said writings filed with the petition herein are each and both a fabrication and fix-up on the part of plaintiff; that, although they purport to have been executed and written with a lead pencil,--the one marked 'A' more than eighteen years ago, and the one marked 'B' more than twenty-nine years ago,--each on its face appears to be and is alike in every respect as to age, and both appear as if but recently made, and were both written by plaintiff, or some one for him, upon the same identical sheet of paper, and then torn apart, thus making each alleged bond upon a separate half sheet of note paper, and each and all was done without the consent or agreement of said Trosper. They say said Trosper did not sign said writings, or either of them, but each and both of same is a forgery." There was no demurrer to this answer, nor was there a motion to make this allegation more specific or definite. On the contrary, an issue was joined upon this allegation. Its sufficiency seems to have been assumed by the parties, as well as by the trial court. The rule is that, after judgment, pleadings are liberally construed, so as to support the judgment. In the evidence, appellant undertook to show the consideration for the execution of the bonds. It developed that there was an entirely different consideration, according to his statement, from that recited in the bonds themselves. Among other things, he stated that there was, in part, a swap of lands; appellant agreeing to convey to the decedent a small tract of land, of about six acres, for the exchange of one of the small tracts sued for in this case. There was no writing evidencing this, nor written description of the boundary proposed to be exchanged, except that upon the trial appellant tendered a deed, offering to convey the six acres. This case forcibly and well illustrates the reason, and, indeed, the necessity, of the rule at the foundation of the statutes of frauds and perjuries, respecting contracts for the conveyance of real estate. Here the whole matter lies within the breast of appellant, not only as to the description and boundary of the land that he was to take, but also the description of the boundary of the land that he was to give; and while it appears that the parties had probably some such trade, and that it was partially executed in the lifetime of the decedent, yet there is no memorandum, no sufficient and satisfactory data, not even in the parol evidence given by any or all of the witnesses (excluding appellant, who, of course, could not testify concerning the transaction), by which the court could be safely guided in the attempt to execute, if it was authorized to execute, this alleged transaction. No relief was asked for, save to compel the heirs of the decedent to make the conveyances called for by the spurious bonds. There was nothing, under the law, for the circuit court to have done in this state of case, and under the evidence before it, than to have dismissed appellant's petition. The judgment is therefore affirmed. Ky.App. 1902. TURNER v. TROSPER et al. 69 S.W. 1089, 24 Ky.L.Rptr. 813 |
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