Kennerly v. Burgess

Fagg, Judge, delivered the opinion of the com*t. This was an action *of trespass for the cutting and carrying away of timber. It was commenced by the appellants in the Circuit Court of Jefferson county against Jackson Burgess, who died before the determination of the suit, and his administrator (the respondent here) properly substituted as a party. The case was tried without the intervention of a jury, and the verdict correctly determines, as we think, the only question necessary to be considered here. The issue presented by the pleadings was simply, whether the cutting of the timber, as charged to have been done by Jackson Burgess, deceased, was an unauthorized act on his part, such as to make him a trespasser under the statute, and liable in damages to these appellants. The land described in the petition was conveyed in trust by one Charles O’Fallon to John J. Ken-nerly and William O’Fallon to secure the payment of certain promissory notes mentioned in the deed, and which were executed by the said Charles in favor of the appellants. After the execution of the deed, and previous to the sale of the premises made in pursuance thereof, the said Charles O’Fal443 Ion and wife made a conveyance in fee of the same land to the said William O’Fallon, and placed hiin in possession. A sale of the property was then made by the trustees in conformity with the requirements of the deed, and the appellants became the purchasers. Previous to the last sale however, and within the knowledge of all the parties, Jackson Burgess had entered upon the land and cut the timber mentioned in the petition, in pursuance of an agreement made with the said Wm. O’Fal-lon. It is shown by the evidence that there was a verbal agreement between the O’Fallons and the appellants, by which the latter were to bid in the land at the trustee’s sale, with a promise to convey the same (at a time then námed) to Sophia O’Fallon, wife of the said Charles, upon the payment to them in full of the aggregate amount of the notes secured by the deed of trust. There was no change of the possession of the property, and sometime thereafter this pa-rol agreement was fully consummated by the payment of the entire debt due the appellants and the conveyance by them of the land. Upon the trial below, there was a verdict for the respondent; whereupon an unsuccessful motion was made for a new trial and the case brought here by appeal. An examination of ^11 the points made in this case is not considered necessary, as the real issue involved seems to have been fairly presented and determined. The true intention of the parties to this transaction seems to have been, that the land should be held as security for the payment of the amount of money mentioned in the verbal agreement. This security was not lessened nor in any manner impaired by the acts of Burgess. The entire debt due and owing to the appellants was fully paid off, and it is difficult to conceive upon what ground a recovery in their favor could have been asked. The testimony in relation to the parol agreement for the conveyance of the land, as we think, correctly interpreted the intention of the parties, and its introduction was altogether competent for that purpose. It proves the fact conclusively, that the appellants intended by [444] this arrangement merely to extend the time for the payment of the debt due to them; and when that was done, to surrender all claim whatsoever to the land. The debt was paid in pursuance of the arrangement, and no loss was sustained by the appellants. The judgment of the Circuit Court is therefore affirmed. The other judges concur.