court erred in rendering a personal judgment | deed further reciting "the cash payment paid against her. The question presented is ruled by the decision of the Supreme Court in the case of Red River National Bank v. J. E. Ferguson et al., 206 S. W. 923, not yet officially reported. Upon the authority of that case, the contention | of the appellants is sustained, the judgment of the lower court reversed, and judgment here rendered against Mr. and Mrs. Benjamin in favor of the appellees, foreclosing the latter's lien and ordering the land sold in satisfaction of the amount due the respective appellees upon the notes sued upon; the judgment of this court in all respects to conform to the judgment of the lower court, except that no personal judgment is here rendered against the Benjamins. Reversed and rendered. On Rehearing. Appellees' motion for rehearing has been carefully considered, and we adhere to the view that under the decision in the case of Red River National Bank v. Ferguson et al. Mrs. Benjamin is not personally liable upon the notes sued upon, and that the personal judgment for the amount of such notes was improperly rendered against her. The motion for rehearing is therefore overruled, but, in deference to the request of appellee, additional facts are found as follows: Mrs. Benjamin executed the notes sued upon, the same being ordinary promissory notes; her husband, H. W. Benjamin, signing the same pro forma. The notes were given in part payment for the land conveyed to Mrs. Benjamin by Harbour, the deed reciting that the entire consideration for the land was paid and secured to be paid by Mrs. Benjamin, to wit, $3,500 cash and the execution of the notes sued upon; the notes being described as of even date with the deed and executed by Abbie L. C. Benjamin, and the as aforesaid having been paid out of the sepa- "Mrs. Benjamin purchased this land. The question of whether Mr. Benjamin or Mrs. Benjamin was responsible was discussed, and Mrs. Benjamin signed the notes first, and that she was to pay them. She had an income sufficient to meet those notes as they became due, and Mr. Benjamin, I didn't, of course, look to him for it at all, but I did to Mrs. Benjamin, as she was there, and she signed the notes first and then he signed them. I had a conversation with Mrs. Benjamin in reference to this being her separate property, and she was going to pay for it. We talked it over. She was here, and she had this income every year from some property at Houston, and that she would-she had something like $5,000 every six months, and had something to pay the notes off as they came due. She could pay the notes out of annuities that she received from the estate. That was the understanding at the time the deal was made, and why I agreed to accept their notes in place of the original Harbour notes. Cross-examination: "I would not have taken the notes if I had not believed they were to be paid out of her separate estate." The testimony aforesaid, of Mrs. Youngblood, was not controverted. JENKINS et al. v. DAWES et al. (Court of Appeals of Kentucky. Jan. 24, 1919.) 1. APPEAL AND ERROR 1009(3)—REVIEWFINDINGS. The court will not disturb the findings of a chancellor where the evidence is conflicting and the court is not convinced that the chancellor has erred to the prejudice of the substantial rights of the appellant. a judgment for $1,400 damages because of his inability and failure to convey a fee simple title. The parties to this appeal have been involved in a number of lawsuits, two of which have come to this court. In our opinion, the judgment of the chancellor should be upheld. The appellee Mrs. Dawes was the daughter of David E. Smith, who died in 1881. Through deed and will she received the farm above referred to, and in a suit to settle the estate of her father it was adjudged she had a defeasible 2. SPECIFIC PERFORMANCE 12-RIGHT TO fee in said farm. Decedent was the executor TENDER Of Deed. of the will of David F. Smith, and brought the above suit to settle his estate. In 1902 an agreed case was filed in which the decedent and the present appellees were parties, and in the judgment in this case it was decreed that Mrs. Dawes had a fee-simRIGHT TO-ple title to the farm. A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances in the case. In 1913 D. V. Jenkins, executor of the will of C. M. Jenkins, brought suit to settle his decedent's estate, in which suit it was alleged that decedent was the owner of two tracts of land in Garrard county, one 32 acres, and the other 77 acres, but no reference was made to the 158-acre farm. Mrs. Dawes filed 4. SPECIFIC PERFORMANCE 13-RIGHT TO- her claim in this case for balance due her GRANTING of Writ. Where plaintiff's ancestor was at all times thoroughly familiar with the character of the title vested in defendants, and it appeared that they had only a defeasible fee, specific per formance of the contract which called for a fee-simple title will not be decreed; the performance being in fact impossible, and such a decree being unenforceable. as rent for use of said farm for the years 1911 and 1912, and this claim was verified by the executor of C. M. Jenkins' will, and one of the appellants to this appeal, in the use of the following language: "Affiant, D. V. Jenkins, states that he believes the foregoing claim to be just and correct. He states that his reason for believing the claim to be just and correct is he knows Appeal from Circuit Court, Garrard that decedent rented and used the land as County. shown by the above affidavit." Suit for specific performance by D. V. Jenkins and others against Martha J. Dawes and another. From a judgment for defendants, plaintiffs appeal. Affirmed. Mrs. Dawes, at the solicitation and request of the appellants, D. V. Jenkins and C. T. Jenkins, became the purchaser of the two tracts of land sold, and there is evidence to L. L. Walker and Wm. Herndon, both of the effect that in their conversation with apLancaster, for appellants. pellees they conceded the ownership of Mrs. P. M. McRoberts, of Stanford, and J. E. Dawes in the 158-acre tract. This was in Robinson, of Lancaster, for appellees. QUIN, J. Appellants are seeking specific performance of a contract dated February 20, 1906, wherein appellees, who are husband and wife, covenanted to convey to C. M. Jenkins, ancestor of the appellants (hereinafter referred to as decedent), in fee simple, a tract of 158.77 acres in Garrard county, known as the "Burnt Tavern Place." In March, 1910, decedent contracted to sell said land to Hamilton & Elliott. By an agreement of July, 1911, the price to be paid by decedent was increased $1,400. On June 14, 1911, decedent and appellees executed a deed to Hamilton & Elliott conveying the feesimple title to the above farm, but the grantees in this deed refused the tender thereof, brought suit against decedent, and recovered 1913. Mrs. Dawes testified that she would not have purchased either of these smaller tracts had there been any question about her title to the larger one, or had she known appellants were claiming any interest in same. In the latter part of 1913, appellants brought suit for something over $12,000 damages against the appellees because of their inability and failure to convey a fee-simple title to Hamilton & Elliott, and in this suit the appellees filed a very voluminous answer, setting up the history of the farm and the several lawsuits pertaining thereto, and among others the agreed case in which it was adjudged that the appellees had the feesimple title to the farm. A demurrer to this answer was filed and overruled, and later the case was dismissed without prejudice. In 1914 the appellant D. V. Jenkins enter For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-44 ered into an agreement with appellee B. A. Dawes, by the terms of which the former agreed to cultivate the land of Mrs. Dawes on shares for the year 1914. This included the 158-acre farm. In October, 1914, a tender of $8,326.50 was made by certain of the appellants to appellees, and at the same time they demanded that appellees execute a deed to the farm. Failing to receive a deed, this suit was filed November 2, 1914. [1] Appellants contend that certain payments made by decedent were for interest on the note referred to in the contract of 1906; appellees claim the payments were for rent. There is proof supporting both contentions, but the weight of the evidence, in our opinion, indicates these payments were for rent. Appellees in their testimony on one or two occasions refer to the payments as being on account of rent, later, correcting these state ments saying they were for interest. D. V. Jenkins, in his recross-examination, was asked the following question and made the answer indicated: "Q. What do you call it? A. I paid it as rent or interest either." It is well settled in this state that this court will not disturb the findings of a chancellor where the evidence is conflicting, and the court is not convinced that the chancellor has erred to the prejudice of the substantial rights of the appellant. Manchester National Bank V. Herndon, 181 Ky. 117, 203 S. W. 1055; Herzog et al. v. Gipson et al., 170 Ky. 325, 185 S. W. 1119. But, aside from this, when the appellees, at the request of decedent, joined him in a deed to Hamilton & Elliott, they performed their part of the contract, and a specific performance will not be decreed against them. [2] In the petition in this case will be found the following language: "After decedent sold said lands to Hamilton & Elliott, as hereinbefore, said decedent requested the defendants that, instead of making the deed to him directly, conveying to him the fee-simple title thereto, they join in with him and make a deed directly to Hamilton & Elliott. This defendants agreed to do, and thereupon the decedent and the defendants, by their deed duly executed, signed, and acknowledged, * did convey said lands to said Hamilton & Elliott in fee simple, with covenant of general warranty of title." A tender is proper when made to the person directed by the purchaser to receive it. 39 Cyc. 1548. This text is supported by Smith v. C. & N. W. Ry. Co., 18 Wis. 17; Webster, Adm'r, etc., v. Tibbits et al., 19 Wis. 438. In the latter of the above cases the court uses this apt illustration: the land to C., and A. does so, it is a satisfaction of the covenant." in the manner and method requested by deAppellees have performed their contract cedent. This is shown by the allegations in the petition, and is borne out by the facts in this record. More they cannot be compelled to do. [3] As said in Blue Grass Realty Co. v. L. R. A. (N. S.) 384: Shelton et al., 148 Ky. 666, 147 S. W. 33, 41 "A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances in the case." See Elliott on Contracts, § 2284; Story's Equity, § 750. [4] It is further evident from the proof in this case that the decedent, during his lifetime, and the appellants, since his death, have at all times been thoroughly familiar with the character of the title vested in Mrs. Dawes. In Jenkins et al. v. Hamilton & Elliott et al., 153 Ky. 163, 154 S. W. 937, the court sustained a judgment for $1,400 damages against C. M. Jenkins, holding that Mrs. Dawes did not have the character of title which Jenkins covenanted to convey; in other words, that she had a defeasible fee. With this character of title fixed by the court it would be impossible to enter a judgment in compliance with the prayer of the petition in this case, viz.: That the appellees convey the lands to the appellants by a deed in fee simple with covenant of general warranty. Where the performance of a contract is in fact impossible, and a decree for specific performance cannot be enforced, the court will deny the remedy. Elliott on Contracts, § 2285. For the foregoing reasons, the judgment is affirmed. "If A. owes B. a sum of money upon written promise to pay, and afterwards B. directs A. to pay the money to C., and A. does so, it is a satisfaction of the debt. So, if A. covenanted with B. to convey to him a tract of land, and B. subsequently requests A. to convey County. Appeal from Circuit Court, Livingston For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Suit by Clyde Rammage against C. C. Ken- | give actual possession by construction of the dall. Judgment for defendant, and plaintiff lands within the lap regardless of intention. appeals. Reversed and remanded, with di3. ADVERSE POSSESSION rections. CLAY, C. This is the second appeal of this case. The opinion on the former appeal may be found in 168 Ky. 26, 181 S. W. 631, L. R. A. 1916C, 1295, where the facts are fully set out. The suit was brought by Rammage against Kendall for false imprisonment. On the first trial there was a judgment for Kendall. On appeal we held that Kendall, as judge of the county court, was without jurisdiction to try Rammage, and reversed the judgment, with directions to give a peremptory instruction in favor of the plaintiff if upon another trial the facts were substantially the same. On the return of the case another trial was had, and a peremptory instruction given in favor of the defendant. Plaintiff again appeals. [1, 2] We have carefully examined the evidence on the last trial, and, so far as the jurisdictional facts are concerned, it is substantially the same as that heard on the first trial. That being true, the opinion on the former appeal is the law of the case, and binding alike on the trial court and this court. Carter Coal Co. v. Dozier, 179 Ky. 457, 200 S. W. 917. It follows that the trial court should have directed a verdict for plaintiff instead of defendant. Judgment reversed, and cause remanded for a new trial consistent with this opinion, If survey of lands appropriated as vacant lands, under Ky. St. c. 127, and covered by patent to plaintiffs' predecessor, was valid, neither defendant nor his predecessors could, in view of section 4704, have any title to lands sued for, it being undisputed that survey included, such lands and was prior to entry under which defendant's predecessor made survey and obtained patent. 103-OVERLAPPING CLAIMS ADVERSE HOLDING - WHAT CONSTITUTES. Constructive possession under survey covered by lap of subsequent patent being in B., or his successors, patentee would have to take actual possession of lands within the lap by inclosing or making improvements to displace possession of B. or his successors. 4. CHAMPERTY AND MAINTENANCE ~~7(2) — CONVEYANCE-WHAT CONSTITUTES. A possession that will make a sale of lands champertous must be an adverse one, which will ripen into a legal title. 5. ADVERSE POSSESSION 103-WHAT CON 6. ADVERSE POSSESSION 100(5) — ACTUAL POSSESSION. Where one having constructive actual possession of all lands within a survey sold all lands, purchaser, who entered thereon with intention to possess the lands to the extent of the survey, acquired actual possession to the extent of the boundaries of the survey and of his deed, which, if continued for 15 years, vested him with legal title, regardless of whether he had patent. 7. PUBLIC LANDS 151 (6)-PATENTS-PARTIES ENTITLED. Sale and conveyance of all lands embraced within a valid survey operated as an equitable assignment of grantor's entry and survey; and, since no one but the grantee had the right to obtain a patent, the procuring of a patent by him, though not based upon the survey of his grantor, was not void. The surveyor being a public officer not au2. ADVERSE POSSESSION 103-CONSTRUC- thorized to make a record of surveys of vacant TIVE POSSESSION. The patent, being junior to survey, was void to extent of interference, and an actual possession by patentee or his successors of lands covered by the patent outside of the lap did not and unoccupied lands except when a warrant had been obtained from county court, it will be presumed, in the absence of a contrary showing, that he did not make any record of the survey in question except upon valid authority. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 11. DEEDS 119-CONTRADICTORY EVIDENCE | champertous and void. The averments, mak-PROVINCE OF JURY. The evidence being contradictory, court should have submitted question whether deed, contents and effect of which was proven by parol, embraced lands in dispute. 12. PUBLIC LANDS 151(7)-LANDS SUBJECT TO ENTRY-VACANT AND UNAPPROPRIATED LANDS. Although survey made by C. and patent granted to him were prior to survey made by F. and patent to him, where F.'s entry was prior to C.'s survey and patent, Ky. St. 8 4704, would render void the survey and patent of C., who made no entry. ing the various pleas, were denied by replies. The answer also contained an averment, that, previous to the entry, survey, and patent under which the plaintiffs claim title, the land had been entered, surveyed, and patented to one Shipp and others. The plaintiff's pleaded in avoidance of that defense, and the plea was abandoned, and no evidence was offered to sustain it. When the evidence was concluded, it had been proved that on the 27th day of December, 1867, a survey of 150 acres of land had been made by the county surveyor for Wesley Breeding, as the assignee of I. D. Stamper, by virtue of an ap 13. PUBLIC LANDS 151(7) LANDS SUB-propriation of it under a warrant issued by JECT TO ENTRY-VACANT AND UNAPPROPRI- Unappropriated lands are subject to entry CIENCY. 151(3)—ENTRY-SUFFI the county court to I. D. Stamper. The survey was duly entered upon the books of the county surveyor, required by law to be kept for the purpose of recording surveys of entries of lands appropriated as vacant lands, under chapter 127, Ky. Stats. Across the lands embraced by the survey, and near the western side, and in a general di An entry, to be valid, must give the situation of the land it calls for with such definite-rection from the south to slightly west of ness that one may, with reasonable diligence, be able to find the land attempted to be entered. north, there runs a ridge, which makes the watershed between the waters of Elkhorn branch and Mitchell's branch. These branches are tributaries of Rock House creek. The portion of the lands embraced in the survey which lie on the east side of the ridge and between the top of the ridge and Mitchell's branch are the lands which are in controversy in this action. Wesley Breeding had a residence upon, and lived upon the lands embraced by, the survey, made in his name, at the date of the survey, but his dwelling was upon the portion of the lands which lay to the westward of the ridge. He continued to reside upon the lands until some time, previous to the year 1870, when he sold and by deed conveyed the lands, or at least the portion of them, which lie to the westward of the ridge, to George A. Combs. Combs immediately moved into the house, which had been occupied by Breeding, and has continued to reside there continuously since, for a period of nearly 50 years. HURT, J. This action was instituted by the appellants, John W. Combs and Henry Combs, whom we will hereafter call the plaintiffs, against the appellee, Elihu Adams, whom we will hereafter call the defendant, to recover from the defendant the possession of a tract of land containing 29.64 acres, and At the time Breeding occupied the lands damages for its detention. When a trial he used and cultivated such of them as were was had, at the conclusion of all the evidence, suitable, or which he desired to cultivate. the court directed a verdict for the defend- After Combs came into possession, under ant, and thereafter rendered a judgment in the purchase from Breeding, he removed the accordance with the directed verdict of the timber from certain other portions of the jury, and dismissing the petition. From the lands, and cultivated and used them, and, as judgment the plaintiffs have appealed, and he testifies, claimed to own the lands to the the question to be determined is the correct- extent of the boundaries of the Breeding ness of the ruling of the trial court, which survey, but he did not inclose or make any directed a verdict for the defendant. The use of the lands to the westward of the ridge, answer was a traverse of the allegations of which are now in controversy. George A. the petition, a claim of title in the defend- Combs did not undertake to carry the Breedant, a plea of adverse possession of the lands ing survey into a grant, but, on the 14th day for a time, exceeding the statutory period, of February, 1870, he caused an entry for necessary to create title in the defendant, 100 acres of land, upon the Elkhorn branch and that the title of plaintiffs, if any, was to be made, by virtue of warrant No. 163 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |