Asher v. Brock

CHIBE JUSTICE BENNETT delivered the opinion of the court. The land in controversy was granted hji the Commonwealth to Hiram Brock and sold by him to Silas Saylor, and by him to John G. Saylor, and by him to Samuel [271] Caldwell, and by Mm to George Gross. All of these sales were by parol, except the one by Hiram Brock to Silas Saylor, which was by title bond; but no deed ivas ever thereafter made by Hiram Brock to Silas Saylor. After the death of George Gross, Rachel Gross, his only heir, sold the land to the appellant by title bond. Thereafter, James Gross, who had been sued by Rachel Gross for cutting timber from the land, discovering that Silas Saylor had never conveyed the land by writing, procured from him a general warranty deed for the same. The legal title being still in the heirs of Hiram Brock, and the equitable title being in Silas Saylor, James Gross also purchased their supposed interests, taking from some of them deeds, from others bonds for a title. At the time James Gross made the purchases from Silas -Saylor and the Brock heirs he knew of the said Arerbal purchases, and that each of them Avas for a valuable consideration, Avliich had been paid. The title being in this condition, the appellant, being a verbal purchaser, sued Silas Saylor and the Brock heirs for a conveyance; James Gross Avas made defendant, and the prayer against him was that be be compelled to surrender his title. To this petition Silas Saylor filed an answer admitting that he made the verbal sale to John G. Saylor, and admitting that he asserted no claim to the land after making that sale, but also admitting that he had thereafter sold the land by deed to James Gross. It is now contended that Sdas Saylor’s admission that he had verbally sold the land to John G. Saylor Avas equivalent to a Avritten confirmation of that sale, and related back to its date, which overreached the intermediate Avritten conveyance that Avas obtained bv James Gross Avith notice of the Acerba! sale. [272] This contention is sought to be maintained upon the old theory of this court that a verbal sale of land was not void, and that while no action could bo maintained thereon to compel a conveyance, it passed an equity for many purposes, etc. But this court, in later years, has reviewed that doctrine, taken it back, and announced in its stead that a verbal sale or division of land, even though held in partnership, is void, and confers upon neither party any equitable interest whatever, but only such collateral equities as may arise out of the transaction, such as giving the purchaser a lien on the land for the purchase money paid, if the possession has been transferred pursuant to the verbal purchase. (See Usher, &c., v. Flood, 83 Ky., 552; Newburger v. Adams, 92 Ky., 27; White v. O’Bannon, 86 Ky., 93; Duncan v. Duncan, 93 Ky., 37.) If Silas Saylor had made a deed to John G. Saylor after he had conveyed the land by deed to James Gross, it would'not have overreached James Gross’ deed, even though-James Gross, at the time he received his deed, had notice of John G. Saylor’s verbal purchase, 'because, as the verbal purchase was void and could not be enforced by either party at law or in equity, James Gross had the right to make, his purchase valid by obtaining the legal title to the land'from Silas Saylor, who held it, and from whom the verbal purchaser could not force the legal title. This view of the case does not interfere with John Saylor’s right to assert a- lien on the land for the purchase money that he has paid, provided he obtained possession of the land by reason of the purchase, and that James Gross had notice of the same at the time he verbally purchased it. The judgment is affinned.