
    Stacy, et al. v. Feltner, et al.
    (Decided March 15, 1911.)
    Appeal from Perry Circuit Court.
    1. Land — Contract of Sale — Absence of Written Memorial — Parol . Evidence — Validity.-—The consideration of a contract for the s;ale of land, though not expressed in -the written memorial of sale, may be shown by parol evidence.
    
      .2'; S.ame=^Title: in.Dhildren— Sale, .by Father — Validity-—Where: the .... children of F, by the death .of their mother,became.the equitable ’■ owners of her ...undivided half .of a tract’of land’subject ;'td th'élife . . .estate of appellant S., they were 'entitled to havé the legal title to ; : such-undivided: half conveyed to them by appellant -by'a-proper ■-:i'-ideed and-'any agreement by- "their"1 father to rescind the cóñtract -.u':-.t-wás.; iio(í.'lb'indihg'upon them. ...
    ■3'?'-" -Rescission' of Contract for Sale of Land — Validity.—Where appellant Stacy paid appellee Feltner $125 to' rescind a contract for-sal'e .. ,of..a..tract of land.upon the idea that the agreement to rescind the j.y -contract was valid, it was hut right that he should recover this . surq of Feltner, and the circuit court properly, gave him judgment therefor, ancb a.lien upon Feltner’s undivided-half of the land .'described in bis title bond to secure its payment-
    E- E. HOGG, J. M. DIXON and C W. NAPIER for appellant. -•
    WOOTTON & MORGAN and GREENE & VANWINKLE for appellee.
   Opinion op tiie Court by

Judge Settle

Affirming.

The appellee, .Garrett Feltner,. and bis seven children, five of them infants suing by hiim as next friend, instituted this action in the court below to compel the specific p'erformánee by the appellants, Shade Stacy and' Sarah 'Stacy,-of a written■ contract or-title:bon'd by which-they sold and'-covenanted to convey to-the appellee,-Garrett Feltner and his wife, Leah Feltner, certain lands therein ' described. The title bond was filed with and made a part of the petition.

It appears from the petition that Leah'Feltner was a daughter of appellants, and that she died intestate'before the' institution of the action, but was survived by the seven children -who united with their father in bringing it'.'-' ' ’ ’' ''

If also appears from the averments of the' petition that the appellant, Shade Stacy, owned in' Perry county six hundred acres of land situated -on Upper Second Creek, a tributary .of the Kentucky river, out of which, in 1892, be allotted to several of bis children homes. To Ms daughter, Leah Feltner, he gave a small parcel, and to his sons, John Stacy and James Stacy, about a hundred acres each. .The daughter and sons never’received ■from their father deeds'to the. lands allotted them, 'respectively, hut at once moved upon them.' :

About 1897, Leah Feltner and her'husband'exchanged the land which had' been’'allotted' her by'* her" father'-to John Stacy for the 100 acres he 'had received from his father, agreeing to give John $150 to make the exchange* which sum was to be paid him by the appellee, Garrett Feltner. The appellant, Shade Stacy, consented to this exchange, and by an agreement between him and John Stacy, the $150 to be received by John in the exchange was to be paid Shade Stacy by Garrett Feltner. Following the exchange, John Stacy moved to the land he got of his sister and she and her husband to the land they got of him. When the exchange of these lands was. made James Stacy had not settled on the parcel of land allotted him by his father, or if so, he soon left it and was not in possession of it when the exchange of lands made by his brother and sisters took place, for at that time the appellant, Shade Stacy, sold the James Stacy land to appellee, Garrett Feltner, at the price of $125. When this was done Shade Stacy and his wife, the former then being the holder of the legal title to both the John Stacy and James . Stacy tracts, executed to the appellee, Garrett Feltner, and his wife, Leah Feltner, the title bond which embraced both the John Stacy and James Stacy lands. By the terms of the title bond appellants obligated themselves to convey .bv deed to Garrett and Leah Feltner, jointly (i> e., an undivided half to each), the lands in question, reserving to-•the vendors a life estate therein.

It was alleged in the petition that appellants had refused to convey the lands, although the appellee, Garrett Feltner, had paid appellant, Shade Stacy, the $125 consideration for the James Stacy land, and also the $150 agreed to be paid on the exchange of land with John Stacy and which the latter assigned to his father. It Avas, therefore, asked in the prayer of the petition that appellants be compelled to convey in person, or by a commissioner and by proper deeds, subject to the life estate of appellants therein, the lands described in the title-bond, an undivided half thereof to the appellee, Garrett Feltner, and the other half to the children of Leah Feltner, deceased.

The answer of appellants contained first a traverse-of the affirmative matter of the petition; secondly, a plea of mistake in the title bond, in that it included more land in the boundary given than was sold the vendees named therein; and thirdly, that the contract evidenced by the title bond was, by agreement between the appellant* Shade Stacy, and appellee, Garrett Feltner, rescinded in 1908, in consideration of $125 then paid by the former to the latter. The averments of the answer were controverted by reply and on the issues thus formed the parties took proof.

The circuit court upon submission of the ease reached the conclusion that appellees were entitled to the relief prayed ; hence, judgment was entered directing the master commissioner, acting for and on behalf of appellants, to make deeds conveying to appellees the land in controversy, an undivided half thereof to the appellee, Garrett Feltner, and a like interest to his seven children by Leah Feltner, such conveyances to be subject, however, to the life estate of the appellants in the land.

It was also adjudged that the appellant, Shade Stacy, was entitled to recover the $125 he paid the appellee, Garrett Feltner, to rescind the contract for the sale of ihe land, the court being of opinion that the agreement to rescind was unenforcible because not in writing; therefore, the appellant, Shade Stacy, was given judgment against the appellee, Garrett Feltner, for the $125, with interest from January 1,1908. and a lien on his undivided’ half of the land .to secure its payment. The commissioner was directed to sell such interest to satisfy the lien debt, if not immediately paid by the appellee, Garrett Feltner. Appellants being dissatisfied with the judgment have appealed.

Appellants’ claim of a mistake in the title bond is not sustained by the evidence; we think it reasonably clear that it obligated them to convey no more than they covenanted to convey. The evidence also falls short of susiaining their contention that the appellee, Garrett Feltner, did not pay all of the $150 he was owing the appellant, Shade Stacy. It is true that the burden of proof as to this pvament was on appellees, and the appellee, Garrett Feltner, stated positively that he paid it as well as-the $125 he owed for the James Stacy land. Its payment was denied by the appellant, Shade Stacy, but not in a convincing way; his testimony seems to be more directed toward proving that Feltner owed him on other transactions than for the land, and he did not satisfactorily controvert the more particular statements of Feltner as to' how and when he paid for the John Stacy land. As Garrett Feltner can neither read nor write, and is ignorant of business methods, it is not surprising that he failed to pretgct ...himself .by securing.receipts for what lie .paid. .Onthpwhold Bis testimony as.-’to.tbé/pajnhíent of the$lSp awas.móre ,cpn§istent "and conYinqing. than'that offered by .appellants in support of .tBeir^ié^i:qf.it's payment... ."

We do not understand that appellant’s ev-idénce. materially contradicts that of appellees as to.the.payment by -.Garrett Feltner, of... the. $125.. for .the James .Stacy land; dt any rate there was sufficient, evidence to support .the circuit court’s, finding that.it had'been’.paid. ’. ... -

. Appellants’ claim that the. contract evidenced by, the title bondjwas without consideration, was properly, rejected by the circuit court.'. The title, bond does’ not express the consideration, in the absence of which it might be supposed that the love and affection entertained by appellant for their daughter, Leah Feltner, was the consideration.’- But, that there was .'a valuable consideration is amply-shown by. the evidence; this consideration was .the .exchange of.lands between the appellee, Garrett Felt-, per, his..wifé, and- John Stacy, the-$150 paid by the appellee, Garrett Feltner, in such exchange, and’the $125 paid .'by him for the James Stacy land. The consideration of a ..contract, though.not expressed in the written memorial .’thereof, may be shown by par.ol evidence as was done in this case. . .

. ..’The circuit court also properly rejected appellant’s ’ contention that the contract evidenced by the title bond hád’ been rescinded by agreement between the appellant, Shade Stacy, .-and the appellee,-Garrett-Feltner-. It is .'true the appellant, Shade Stacy, testified- that the appellee, Garrett Feltner, made- ah agreement with him to rescind th,e contract’in consideration of’.his payment to Feltner .of $125. This does not seem to be denied bv.Feltnér, but he testified that the appellant, Shade Stacy, was .to-’pay him. a.further sum for certain improvements he made, ripon "the''John Stacy land; though his .statements , were, some.what vague as to the sum to be paid and the character of the improvements for which, he was to receive it. The court'refused to enforce the alleged’ ’rescission, because the agreement.was in parol, and there was no surrender or cancellation of- the title, bond. B ¿sides, the children of the appellee, Garrett Feltner, .upon the . death’..’of’their mother, became the equitable '.owners. of ’ her, ’undivi Jed, half of- the -land, Subject .to-appellant is ..life estate therein,^ and were, entitled to have, .the legal ihalf.conveyed them by appellant ns provided by tbe bond; tbis being so any agreement that may have been made by their father to rescind the contract was not binding upon them.

As, according to the weight of the evidence, the appellant, Shade Stacy, paid the appellee, Garrett Feltner, $125 upon the idea that the agreement to rescind the contract was valid, it was hut right thát he should recover .this sum of the appellee, Garrett Feltner, therefore the circuit court properly gave him judgment therefor. and a lien upon Garrett Feltner’s undivided half of the land described in the title bond to secure its payment.

We will not enter upon a consideration of other matT ters. of indebtedness claimed by the appellant, Shade Stacy, to be due him from-the appellee, Garrett Feltner. They had'no connection with-the contract with respect to the land, hut were wholly independent transactions, and for such-of-this indebtedness as still exists the"appellant, Shade Stacy, could not have been given a lien on ■the land, hut must resort to the ordinary legal remedies to enforce its payment.

Being of opinion that the judgment contains • an equitable adjustment of tbe rights of the parties and that, it; Is. Substantially free from error, it is hereby affirmed.  