CHAPTER 371 Formality and Assignability of Contracts — Installment Sales Contracts

General Provisions

371.010. Statute of frauds — Contracts to be written.

No action shall be brought to charge any person:

  1. For any representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, made with intent that such other may obtain thereby credit, money, or goods;
  2. Upon any promise to pay a debt contracted during infancy, or any ratification of a contract or promise made during infancy;
  3. Upon any promise of a personal representative as such to answer any liability of his decedent out of his own estate;
  4. Upon any promise to answer for the debt, default, or misdoing of another;
  5. Upon any agreement made in consideration of marriage, except mutual promises to marry;
  6. Upon any contract for the sale of real estate, or any lease thereof for longer than one year;
  7. Upon any agreement that is not to be performed within one year from the making thereof;
  8. Upon any promise, agreement, or contract for any commission or compensation for the sale or lease of any real estate or for assisting another in the sale or lease of any real estate; or
  9. Upon any promise, contract, agreement, undertaking, or commitment to loan money, to grant, extend, or renew credit, or make any financial accommodation to establish or assist a business enterprise or an existing business enterprise including, but not limited to the purchase of realty or real property, but this subsection shall not apply to agreements pursuant to which credit is extended by means of a credit card or similar device, or to consumer credit transactions;

unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. It shall not be necessary to express the consideration in the writing, but it may be proved when necessary or disproved by parol or other evidence.

History. 470: amend. Acts 1950, ch. 174; 1990, ch. 259, § 1, effective July 13, 1990.

NOTES TO DECISIONS

Analysis

1. Purpose.

The statute of frauds applies to persons sui juris, and was designed for the prevention of perjuries in actions growing out of alleged loose parol guaranties. Deposit Bank of Carlisle v. Stitt, 107 Ky. 49 , 52 S.W. 950, 21 Ky. L. Rptr. 671 , 1899 Ky. LEXIS 130 ( Ky. 1899 ).

The purpose of requiring a writing to evidence an agreement is to assure certainty of the essential terms thereof and to avoid controversy and litigation. Walker v. Keith, 382 S.W.2d 198, 1964 Ky. LEXIS 337 ( Ky. 1964 ).

The statute of frauds does not lend itself to the issue of whether there is or is not a contract in existence, for its design and purpose is to prevent the enforcement of a contract unless, by reason of some exception, the statute of frauds would be found not applicable. Bennett v. Horton, 592 S.W.2d 460, 1979 Ky. LEXIS 318 ( Ky. 1979 ).

2. Applicability.

This section applies to actions and not to defenses. Drake v. Rowe, 162 Ky. 646 , 172 S.W. 1068, 1915 Ky. LEXIS 135 ( Ky. 1915 ); Bullock v. Young, 252 Ky. 640 , 67 S.W.2d 941, 1933 Ky. LEXIS 1027 ( Ky. 1933 ).

This section is not applicable where the consideration for the agreement redounds to the benefit of the promisor, or the promise is made to protect some interest of the promisor. State Auto. Ins. Co. v. Wilson, 280 S.W.2d 537, 1955 Ky. LEXIS 182 ( Ky. 1955 ).

The statute of frauds applies to sales of land at an auction. Nicholson v. Clark, 802 S.W.2d 934, 1990 Ky. App. LEXIS 82 (Ky. Ct. App. 1990).

Statute of Frauds did not apply where transaction did not involve conveyance back to purchaser, but only the conveyance of less than fee simple absolute by purchasers to vendors and his daughter. Dennis v. Bird, 941 S.W.2d 486, 1997 Ky. App. LEXIS 28 (Ky. Ct. App. 1997).

Judgment against a bankruptcy debtor based on an oral agreement to sell horses to a creditor was void since the written agreement which the debtor did not sign and upon which the judgment was based required the debtor to finance a portion of the purchase price, and the recent enactment of KRS 371.010(9) precluded an action on an agreement to extend credit unless the agreement was in writing and signed. In re Backer, 2011 Bankr. LEXIS 3415 (Bankr. E.D. Ky. Aug. 30, 2011).

3. Governing Law.

The statute of frauds related to the remedy or mode of procedure and was applied according to the law of the forum, and the validity and enforceability of the contract where made or where to be performed was immaterial. (decided under prior law) Kleeman & Co. v. Collins, 72 Ky. 460 , 1872 Ky. LEXIS 77 ( Ky. 1872 ).

The statute of frauds relates to the remedy or mode of procedure and is applied according to the law of the forum, and the validity and enforceability of the contract where made or where to be performed is immaterial. Garnes v. Frazier & Foster, 118 S.W. 998 ( Ky. 1909 ); Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ); Commonwealth v. Mirandi, 243 Ky. 823 , 50 S.W.2d 13, 1932 Ky. LEXIS 203 ( Ky. 1932 ).

4. Representations Concerning Another.

Equity would not make an executor answerable upon a verbal agreement to set off the demand accruing to him as executor against a debt due from the testator. (decided under prior law) Crews v. Williams, 5 Ky. 262 , 1810 Ky. LEXIS 116 ( Ky. 1810 ).

Verbal promise of administratrix to pay the debt of her deceased husband could not be enforced against her in her own right, nor as administratrix in the absence of proof of assets. (decided under prior law) Guishaber v. Hairman, 65 Ky. 320 , 1867 Ky. LEXIS 84 ( Ky. 1867 ).

Where representations within this section are actually fraudulently made, an action may be had for the damages caused by the representation. Vertrees v. Head & Matthews, 138 Ky. 83 , 127 S.W. 523, 1910 Ky. LEXIS 43 ( Ky. 1910 ).

KRS 411.070 and 434.090 (repealed) (liability for falsely stating financial condition) did not change the common-law rule in regard to an action for deceit. Hill v. Halmhuber, 225 Ky. 394 , 9 S.W.2d 55, 1928 Ky. LEXIS 793 ( Ky. 1928 ).

Subsection (1) of this section does not abrogate common-law remedy for fraud merely because the fraudulent misrepresentations are by parol. Scott v. Farmers State Bank, 410 S.W.2d 717, 1966 Ky. LEXIS 43 ( Ky. 1966 ).

5. Infant’s Contracts.

Infant’s contracts were not void but were merely voidable at the election of the infant. (decided under prior law) Phillips v. Green, 21 Ky. 344 , 1827 Ky. LEXIS 161 ( Ky. 1827 ); Breckenridge's Heirs v. Ormsby, 24 Ky. 236 , 1829 Ky. LEXIS 254 ( Ky. 1829 ); Lee v. Page, 75 Ky. 202 , 1876 Ky. LEXIS 6 3 ( Ky. 1876 ); Hoffert v. Miller, 86 Ky. 572 , 6 S.W. 447, 9 Ky. L. Rptr. 732 , 1888 Ky. LEXIS 6 ( Ky. 1888 ).

Contracts not equal and beneficial to infants gave rise to a rebuttal presumption that they were procured by fraud. (decided under prior law) Middleton v. Hoge, 68 Ky. 478 , 1869 Ky. LEXIS 41 ( Ky. 1869 ).

An infant who appeared before a notary public and swore that he was of age in order to induce vendee to purchase his land could not later disaffirm contract on ground of infancy. (decided under prior law) Schmitheimer v. Eiseman, 70 Ky. 298 , 1870 Ky. LEXIS 56 ( Ky. 1870 ).

Where infant sold land and executed surety bond that he would confirm the conveyance upon attaining majority, the surety on the bond was estopped to assert title to the land against the infant’s vendee. (decided under prior law) Holland v. Thos. F. Crutchfield, Stone & Co., 5 Ky. Op. 381, 1872 Ky. LEXIS 292 (Ky. Ct. App. May 1, 1872).

Contract of infant to discharge a legal obligation, created either by general law or statute, was valid and enforceable. (decided under prior law) Stowers v. Hollis, 83 Ky. 544 , 7 Ky. L. Rptr. 549 , 1886 Ky. LEXIS 7 (Ky. Ct. App. 1886).

After removal of disability of infancy, person could elect to confirm or avoid contracts made during infancy. (decided under prior law) Hoffert v. Miller, 86 Ky. 572 , 6 S.W. 447, 9 Ky. L. Rptr. 732 , 1888 Ky. LEXIS 6 ( Ky. 1888 ).

Person could confirm deed made during infancy by an act in pais after attaining majority. It was not essential that he reacknowledge the first deed or make a new one. (decided under prior law) Hoffert v. Miller, 86 Ky. 572 , 6 S.W. 447, 9 Ky. L. Rptr. 732 , 1888 Ky. LEXIS 6 ( Ky. 1888 ).

A deed to an infant containing a clause attempting to give infant the right to recovery in a particular manner did not remove the disability and infant was not estopped to disaffirm a conveyance made pursuant to such deed. (decided under prior law) Sewell v. Sewell, 92 Ky. 500 , 18 S.W. 162, 17 Ky. L. Rptr. 1069 , 1892 Ky. LEXIS 8 ( Ky. 1892 ).

Mere fact that infant had a mature appearance at the time contract was made did not of itself estop infant from disaffirming the contract. (decided under prior law) Sewell v. Sewell, 92 Ky. 500 , 18 S.W. 162, 17 Ky. L. Rptr. 1069 , 1892 Ky. LEXIS 8 ( Ky. 1892 ).

After removal of disability of infancy, a person may elect to confirm or avoid contracts made during infancy. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ); Schlickman v. Dusing, 180 Ky. 506 , 203 S.W. 295, 1918 Ky. LEXIS 100 ( Ky. 1918 ).

Infant’s contracts are not void but are merely voidable at the election of the infant. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ); Forsee's Adm'x v. Forsee, 144 Ky. 169 , 137 S.W. 836, 1911 Ky. LEXIS 552 ( Ky. 1911 ); Schlickman v. Dusing, 180 Ky. 506 , 203 S.W. 295, 1918 Ky. LEXIS 100 ( Ky. 1918 ); Peters v. Noble, 196 Ky. 123 , 244 S.W. 416, 1922 Ky. LEXIS 483 ( Ky. 1922 ).

The motive of an infant for disaffirming a contract is not subject to inquiry. Forsee's Adm'x v. Forsee, 144 Ky. 169 , 137 S.W. 836, 1911 Ky. LEXIS 552 ( Ky. 1911 ).

6. — Relating to Real Estate.

A sale of land which is entire and indivisible, a portion of which is owned by an infant, since illegal as to the infant, is bad altogether. Clark v. Stanhope, 109 Ky. 521 , 59 S.W. 856, 1900 Ky. LEXIS 236 ( Ky. 1900 ).

The father and stepmother of infants had no power to make and enter into a contract by which fruit trees would be delivered and planted on the land of the infant children in exchange for fruit and, where the labor performed by the children was at their father and stepmother’s direction and the children did not say or do anything to induce the making of the contract, there was no lien on the land which could be enforced and money recovered. Butler v. Stark, 79 S.W. 204, 25 Ky. L. Rptr. 1886 (1904).

Infant’s deeds are not so easily ratified as purchases; something more than recognition or silent acquiescence is required for a binding confirmation unless the acquiescence is for the statutory period of limitation. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ).

Person may confirm deed made during infancy by an act in pais after attaining majority. It is not essential that he reacknowledge the first deed or make a new one. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ); Schlickman v. Dusing, 180 Ky. 506 , 203 S.W. 295, 1918 Ky. LEXIS 100 ( Ky. 1918 ).

An infant who executes a note in payment for land may, upon attaining majority, disaffirm the transaction, and suit against the payee’s administratrix for the purpose of canceling the note is proper. Forsee's Adm'x v. Forsee, 144 Ky. 169 , 137 S.W. 836, 1911 Ky. LEXIS 552 ( Ky. 1911 ).

7. — Estoppel.

An infant who appeared in open court and testified that he was 21 years of age is estopped from disaffirming a conveyance accepted on the strength of such testimony and infant’s subsequent grantee can be in no better position than he. Damron v. Commonwealth, 110 Ky. 268 , 61 S.W. 459, 22 Ky. L. Rptr. 1717 , 1901 Ky. LEXIS 88 ( Ky. 1901 ).

A minor who, when he sold real estate, represented he was over 21 years of age and who was not more than a month under 21 years of age, was a married man, father of two (2) children and wore a full beard and in every way appeared to be over 21 years of age was estopped from seeking to avoid the sale four (4) years after it was made where the price paid was its fair value at the time of sale and no claim could be made of unfair dealing on the purchaser’s part. Ingram v. Ison, 80 S.W. 787, 26 Ky. L. Rptr. 48 (1904).

Infant’s appearance coupled with representations estopped him from disaffirming conveyance. Asher v. Bennett, 143 Ky. 361 , 136 S.W. 879, 1911 Ky. LEXIS 426 ( Ky. 1911 ); Ingram v. Ison, 80 S.W. 787, 26 Ky. L. Rptr. 48 (1904); Turner v. Stewart, 149 Ky. 15 , 147 S.W. 772, 1912 Ky. LEXIS 566 ( Ky. 1912 ).

The rule estopping a person from disaffirming a contract made during infancy is an application of the equitable doctrine that he who misleads another by his solemn assertation of fact will not be allowed to assert the contrary to the prejudice of the person who has thus been misled and perpetrate a fraud upon him. Asher v. Bennett, 143 Ky. 361 , 136 S.W. 879, 1911 Ky. LEXIS 426 ( Ky. 1911 ).

The rule denying relief to the infant is not restricted in its operation to his misrepresentations; it applies equally to his fraudulent concealments. County Board of Education v. Hensley, 147 Ky. 441 , 144 S.W. 63, 1912 Ky. LEXIS 251 ( Ky. 1912 ).

Where an infant, by reason of his personal appearance, family surroundings and business activities, coupled with a misrepresentation or fraudulent concealment, leads one who deals with him in good faith, and not knowing that he is an infant, to believe that he is of age, he will be estopped from maintaining an action to avoid his executed contract. County Board of Education v. Hensley, 147 Ky. 441 , 144 S.W. 63, 1912 Ky. LEXIS 251 ( Ky. 1912 ); Smith v. Cole, 148 Ky. 138 , 146 S.W. 30, 1912 Ky. LEXIS 395 ( Ky. 1912 ).

Where an infant has conveyed land for a reasonable price, representing at the time that he was of age, and has thereby induced the grantee to part with the consideration, the trade being fairly made and the grantee having no notice that grantor was under age, grantor will be bound by his deed; but where one deals with an infant knowing him to be under age, the infant is never estopped from relying on his infancy to avoid the contract. County Board of Education v. Hensley, 147 Ky. 441 , 144 S.W. 63, 1912 Ky. LEXIS 251 ( Ky. 1912 ).

Estoppel works the same against infants as it does adults. Adkins v. Adkins, 183 Ky. 662 , 210 S.W. 462, 1919 Ky. LEXIS 555 ( Ky. 1919 ).

Where grantee is in such a position that he knows or should know that grantor is an infant, representations of the infant do not estop him from disaffirming the contract when he comes of age. Mitchell v. Swartz, 207 Ky. 780 , 270 S.W. 22, 1925 Ky. LEXIS 183 ( Ky. 1925 ).

8. — Ratification.

Ratification of a contract made during infancy could be signified by an act in pais. (decided under prior law) Phillips v. Green, 21 Ky. 344 , 1827 Ky. LEXIS 161 ( Ky. 1827 ).

A voidable purchase of property by an infant could be confirmed by acts which would not confirm a sale by him, and a sale could be confirmed by acts which would not confirm a promise. (decided under prior law) Middleton v. Hoge, 68 Ky. 478 , 1869 Ky. LEXIS 41 ( Ky. 1869 ).

Suit could not be brought upon oral promise made after promisor was of age to pay a debt incurred during infancy, but where person retained property purchased during infancy after he became of age and then disposed of it, and took the proceeds to himself, he confirmed the original contract and was liable thereunder. (decided under prior law) Robinson v. Hoskins, 77 Ky. 393 , 1878 Ky. LEXIS 87 ( Ky. 1878 ).

Where an infant executed a bond to convey land to Johnson when he should obtain his majority and later during his infancy executed a deed for the same land to Vallandingham who was unaware of the bond with Johnson and, on becoming of age, he executed a deed to Johnson, the execution of the deed to Johnson disaffirmed his deed to Vallandingham even though he had not returned the consideration paid by Vallandingham. (decided under prior law) Vallandingham v. Johnson, 85 Ky. 288 , 3 S.W. 173, 8 Ky. L. Rptr. 940 , 1887 Ky. LEXIS 45 ( Ky. 1887 ).

Where an infant to whom his father had conveyed two (2) tracts of land, reserving a life estate to himself and his wife, acquiesced in the transfer for three (3) or four (4) years after he reached his majority, it was equivalent to an acceptance especially after the right of creditors intervened. Locknane v. Hoskins, 69 S.W. 719, 24 Ky. L. Rptr. 639 , 1902 Ky. LEXIS 488 (Ky. Ct. App. 1902).

An infant ratified a sale of real estate made during his minority by renting the land of the purchaser two (2) years after his majority, thereby recognizing his right and title to it. Ingram v. Ison, 80 S.W. 787, 26 Ky. L. Rptr. 48 (1904).

An infant who accepted the balance of the purchase price of real estate after he reached his majority ratified the sale which he had made during his infancy and the ratification related back to the date of the contract of sale and made that contract as complete and perfect as though he had been 21 years of age when it was made. Damron v. Ratliff, 123 Ky. 758 , 97 S.W. 401, 30 Ky. L. Rptr. 67 , 1906 Ky. LEXIS 212 ( Ky. 1906 ).

Ratification of a contract made during infancy may be signified by an act in pais. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ).

Acceptance of consideration for a contract made during infancy, after party comes of age, is a ratification of the contract. Ward v. Ward, 143 Ky. 91 , 136 S.W. 137, 1911 Ky. LEXIS 347 ( Ky. 1911 ); Turner v. Stewart, 149 Ky. 15 , 147 S.W. 772, 1912 Ky. LEXIS 566 ( Ky. 1912 ).

Mere retention of consideration paid during infancy by adult did not amount to a confirmation or ratification. Peters v. Noble, 196 Ky. 123 , 244 S.W. 416, 1922 Ky. LEXIS 483 ( Ky. 1922 ).

9. To Answer for Debt of Another.

For a promise to be one to answer for debt, default or misdoing of another, it was essential that the person on whose behalf the promise was made remain bound. Where he was discharged or was never credited, the promise was valid, though oral. (decided under prior law) Armstrong v. Flora, 19 Ky. 43 , 1825 Ky. LEXIS 97 ( Ky. 1825 ).

If one promises to pay the debt of another in order to further some purpose of his own, such promise is not within the statute of frauds. Barnett v. Stewart Lumber Co., 547 S.W.2d 788, 1977 Ky. App. LEXIS 638 (Ky. Ct. App. 1977).

Statute of frauds provision regarding promise to answer for the debt of another applies only to enforcement actions by the payee and not by the debtor whose obligation was assumed by another. Barnett v. Stewart Lumber Co., 547 S.W.2d 788, 1977 Ky. App. LEXIS 638 (Ky. Ct. App. 1977).

10. — Construction.

The statute of frauds does not make oral contracts to answer for the debt of another invalid; it merely prohibits the bringing of an action upon such a promise and the oral contract may be relied on as a defense if an action is brought. Drake v. Rowe, 162 Ky. 646 , 172 S.W. 1068, 1915 Ky. LEXIS 135 ( Ky. 1915 ).

Oral agreement of partners to sell merchandise and allow buyer to credit note executed by two (2) partners individually, though unenforceable while executory under this section, is valid when executed. Smith v. Hall, 217 Ky. 615 , 290 S.W. 480, 1927 Ky. LEXIS 31 ( Ky. 1927 ).

11. — Contracts Within Section.

Voluntary promise of brother to pay part of purchase price of land conveyed to his sister was within the statute of frauds and unenforceable. Adams v. Wathen, 50 S.W. 962, 21 Ky. L. Rptr. 101 , 1899 Ky. LEXIS 289 (Ky. Ct. App. 1899).

A verbal promise of a member of a firm to pay for cattle purchased by another who had no authority to bind the firm either as agent or partner is within the statute of frauds. Hillert v. Harned, 143 Ky. 3 , 135 S.W. 764, 1911 Ky. LEXIS 334 ( Ky. 1911 ).

An oral promise by surety to be bound on bond of police officer if he was reappointed for another term was a promise to answer for the debt, default or misdoing of another and unenforceable under the statute of frauds. Commonwealth use of Ledford v. Hinson, 143 Ky. 428 , 136 S.W. 912, 1911 Ky. LEXIS 445 ( Ky. 1911 ) ( Ky. 1911 ).

A verbal acceptance of an order given by one partner on another for the former’s individual debt, for which there is no consideration, is within the statute of frauds and no recovery can be had on such acceptance. Hill v. Wright, 144 Ky. 806 , 139 S.W. 946, 1911 Ky. LEXIS 721 ( Ky. 1911 ).

Under an oral agreement of contractor to pay for material and labor of subcontractor going into construction, contractor was not liable for groceries furnished subcontrator’s laborers as the agreement was a verbal promise to answer for the debt of another unenforceable under the statute of frauds. Laurel Grocery Co. v. Myers Bros., 262 Ky. 523 , 90 S.W.2d 693, 1936 Ky. LEXIS 48 ( Ky. 1936 ).

Guarantee by corporation of payment by its employes for coal hauled is not enforceable unless in writing, since there is no primary obligation on the corporation. Black Mountain Corp. v. Turner, 262 Ky. 733 , 91 S.W.2d 10, 1936 Ky. LEXIS 85 ( Ky. 1936 ).

An alleged oral promise of officers of a corporation buying assets of another corporation to pay the account of that corporation came within the statute of frauds, but the exception to evidence in deposition concerning the oral promise should not have been sustained where it was competent for other purposes. Payne-Baber Coal Co. v. Butler, 276 Ky. 211 , 123 S.W.2d 273, 1938 Ky. LEXIS 542 ( Ky. 1938 ).

Where doctor placed illegitimate child with plaintiff under agreement that plaintiff was to receive monthly payments for care of child, which payments doctor was to collect from parents of child, doctor’s oral agreement to make the payments out of his own pocket if parents did not was a promise to answer for the debt of another, and was unenforceable. Hurst's Ex'rs v. Bowling, 277 Ky. 187 , 126 S.W.2d 154, 1939 Ky. LEXIS 641 ( Ky. 1939 ).

Guaranty of director of insolvent bank that depositor would get his money back and lose nothing was a promise to answer for debt, default or miscarriage of another, and must be in writing and signed by party to be charged before it can be enforced. Kinnarney v. Corcoran, 285 Ky. 702 , 149 S.W.2d 32, 1941 Ky. LEXIS 460 ( Ky. 1941 ).

12. — Agreement Not Within Section.

Where two (2) daughters have received $1,000 less from their father than the other children, a promise by the mother after the father’s death that if daughters would not bring suit she would pay $1,000 to each of them is not within this section, since the amount the daughters were entitled to out of the father’s estate was not a debt due them. Fain v. Turner's Adm'r, 96 Ky. 634 , 29 S.W. 628, 16 Ky. L. Rptr. 719 , 1895 Ky. LEXIS 135 ( Ky. 1895 ).

Deed by which wife conveyed her land to husband’s creditor, and which creditor claimed was intended as a mortgage to secure husband’s debt, was not sufficient to charge land for husband’s debts, in absence of express written provision to that effect, and could not be proved to have that effect by parol evidence. Britton v. Marcum, 278 Ky. 138 , 128 S.W.2d 553, 1939 Ky. LEXIS 396 ( Ky. 1939 ).

An oral promise by beneficiary of insurance policy to pay debts and funeral expenses out of the proceeds of insurance policy if insured did not change the beneficiary was not a promise to answer for the debt, default or misdoing of another and the statute of frauds did not apply. Quinlan v. Quinlan, 293 Ky. 565 , 169 S.W.2d 617, 1943 Ky. LEXIS 666 ( Ky. 1943 ).

An oral promise to pay a finder’s fee to one who secured a buyer for the stock in a corporation part of which was contained in the estate of the deceased did not constitute a promise to pay a debt of the deceased and was therefore not a violation of the statute of frauds. Hill v. Thomas, 462 S.W.2d 922, 1970 Ky. LEXIS 657 ( Ky. 1970 ).

13. — — Original Promise.

Promise to reimburse one for becoming a surety on the note of another is original and not within the statute of frauds. George v. Hoskins, 30 S.W. 406, 17 Ky. L. Rptr. 63 (1895).

Promise to pay an attorney a sum of money to allow promisor to settle dispute with attorney’s client was not a promise to pay an obligation of another, but was original and personal to the promisor. Van Winkle v. King, 145 Ky. 691 , 141 S.W. 46, 1911 Ky. LEXIS 927 ( Ky. 1911 ).

A promise by owners of tobacco that if another will guarantee their tobacco to be as shown by sample and pay any reclamations which may be allowed, they will repay him is not within the statute of frauds. Robertson v. Willhoite, 157 Ky. 58 , 162 S.W. 563, 1914 Ky. LEXIS 230 ( Ky. 1914 ).

Guarantee of dividends on stock and promise to rebuy at par value in case purchaser should become dissatisfied was original and not within statute of frauds. West v. King, 163 Ky. 561 , 174 S.W. 11, 1915 Ky. LEXIS 270 ( Ky. 1915 ).

Promise of purchaser of property involved in litigation to caretaker that if he was forced to take the property, he would pay caretaker’s wages was not within the statute. Keyser v. Hopkins, 237 Ky. 105 , 34 S.W.2d 968, 1931 Ky. LEXIS 555 ( Ky. 1931 ).

Where defendant had contracted to rent automobiles from plaintiff for the use of defendant’s family over an indefinite period, and defendant’s daughter obtained automobile with mother’s consent but without written authority and signed “trip slip,” the original contract controlled and the “trip slip” was not a separate contract such as would require written authorization to render mother liable. U-Drive-It Co. v. Archer, 277 Ky. 356 , 126 S.W.2d 837, 1939 Ky. LEXIS 671 ( Ky. 1939 ).

Oral promise by church trustees to save makers of note given to forestall foreclosure of mortgage on church harmless if they should be compelled to pay was not within the statute of frauds as a promise to answer for the debt of another but was merely the promise of the church to later pay its own debt. Finch's Ex'r v. Hopewell, 285 Ky. 495 , 148 S.W.2d 345, 1941 Ky. LEXIS 414 ( Ky. 1941 ).

Where an alleged oral agreement by plaintiffs that defendants could apply any money in their hands owing plaintiffs on debt of a third person owing defendants was not a collateral promise by plaintiffs to pay the third person’s debt but was part of the consideration for the principal contract between plaintiffs and defendants, the agreement was not within the statute of frauds. Mollick v. Collins, 252 S.W.2d 665, 1952 Ky. LEXIS 1007 ( Ky. 1952 ).

The alleged offer of compromise made by the adjustor in action for damages arising out of automobile accident was not promise to answer for the debt, default or misdoing of another within the purview of subsection (4) of this section but adjustor was agent for his principal, the insurance company, and his offer was as if made by it. Brown v. Noland Co., 403 S.W.2d 33, 1966 Ky. LEXIS 321 ( Ky. 1966 ).

14. — — Benefit to Promisor.

A verbal promise by a stockholder to pay his share of money advanced by “committee” is not within this subsection as the money was advanced for the benefit of each stockholder. Grant v. Pearce, 16 Ky. L. Rptr. 127 , 16 Ky. L. Rptr. 204 .

Where owner promised subcontractors to see them paid if they would perform their contracts, the promise was not within subsection (4) of this section, since there was a direct benefit to the owner, and it is immaterial that the debt of another was discharged. Hall v. Alford, 105 Ky. 664 , 49 S.W. 444, 20 Ky. L. Rptr. 1482 , 1899 Ky. LEXIS 248 ( Ky. 1899 ).

If one promises to pay the debt of another in order to further some purpose of his own, such promise is not within this section. Miller v. Davis, 168 Ky. 661 , 182 S.W. 839, 1916 Ky. LEXIS 600 ( Ky. 1916 ).

An oral agreement by a partner of a contractor partnership to pay compensation insurance premium covering subcontractor where W. P. A. regulation required contractor and subcontractor to carry compensation insurance was not within the statute of frauds as a promise to answer for the debt of another, since the contractor benefited by the protection afforded through the issuance of the policies, and the fact they were issued in the subcontractor’s name was immaterial. Cole & Moore v. Aetna Casualty & Ins. Co., 280 Ky. 757 , 134 S.W.2d 639, 1939 Ky. LEXIS 211 ( Ky. 1939 ).

An oral promise by abutting landowners, made prior to assignment to them of a judgment of another abutting landowner against the county for value of land condemned for highway purposes, to pay $250 of the judgment if the county attorney would drop his exceptions to the commissioner’s report which the county attorney contended were excessive was not within the statute of frauds, since promisors received the benefit of having road which passed by their farms constructed. Upchurch v. Clinton County, 282 Ky. 510 , 139 S.W.2d 432, 1940 Ky. LEXIS 219 ( Ky. 1940 ).

Ordinarily, a promise to pay the debt or default of another not in writing is prohibited by the statute of frauds but there are numerous exceptions to the rule and it has often been held that where the consideration for an agreement to pay the debt, default or obligation of another redounds to the benefit of the promisor, the law does not apply as it would be unequitable and unfair to permit one to receive and enjoy the benefits of a promise and then evade his part of the obligation because the promise was not in writing. Upchurch v. Clinton County, 282 Ky. 510 , 139 S.W.2d 432, 1940 Ky. LEXIS 219 ( Ky. 1940 ).

Individual did not orally agree to pay debt of another when he agreed to pay attorney if he kept him out of jail under a department of justice prosecution against him growing out of tax claims against him, a motor car company and two (2) corporations under his management and control. Seiler v. Lawrence, 312 Ky. 857 , 230 S.W.2d 70, 1950 Ky. LEXIS 794 ( Ky. 1950 ).

Trial court properly entered an amended judgment in favor of the parents in their action to recover the unpaid balances of loans to their son for college and divorce because the trial court's consideration of the parties' incomes constituted harmless error and the loans not violate the Statute of Frauds where the son intended to borrow money to hire a divorce attorney and repay his parents the next month, the parents obtained a college loan, the benefit of which redounded to the son, and the son's checks referencing the school loan, in combination with the automatic monthly transfers from the son's account to the parents account, constituted written evidence of the verbal agreement. Chin v. Chin, 494 S.W.3d 517, 2016 Ky. App. LEXIS 114 (Ky. Ct. App. 2016).

15. — — New Consideration.

Agreement whereby sureties on one note agreed with sureties on another, each having the same maker, that if the sureties on the second note would allow security held by them to be applied to the first note, sureties on the first note would indemnify them was based on a valuable consideration and not within the statute of frauds. Adams v. Brown, 32 S.W. 282, 17 Ky. L. Rptr. 634 (1895).

Where sawers of wood had a lien on lumber and released it to another creditor of the owner of the wood on the oral promise to sell it and pay the sawers, the promise was not within the statute of frauds as it was founded upon a new consideration, independent of the debt to be paid, and could perhaps be deemed as an original promise, and it was immaterial that it operated to release the owner of the debt to the sawers. Simpson v. Carr & Parrigin, 76 S.W. 346, 25 Ky. L. Rptr. 849 (1903).

A promise to pay a debt which another owes, if founded upon a new and different consideration, is valid, though oral. Bryant v. Jones, 183 Ky. 298 , 209 S.W. 30, 1919 Ky. LEXIS 471 ( Ky. 1919 ).

16. — — Assumption by Purchaser.

An agreement to assume notes executed by vendor to another as part of the purchase price of land is not a promise to pay the debt of another within this section. Daniels v. Gibson, 47 S.W. 621, 20 Ky. L. Rptr. 847 (1898).

A promise by a purchaser to assume and pay lien notes made to the vendor debtor, and based on sufficient consideration, is not within this section. Botkin v. Middlesborough Town & Land Co., 139 Ky. 677 , 66 S.W. 747, 23 Ky. L. Rptr. 1964 , 1890 Ky. LEXIS 35 ( Ky. 1890 ); Mudd v. Carico, 104 Ky. 719 , 47 S.W. 1080, 20 Ky. L. Rptr. 898 , 1898 Ky. LEXIS 223 ( Ky. 1898 ).

Where payee of notes given for the purchase of corporate stock agrees to release the maker and accept purchaser of maker’s interest as party liable thereon, the promise of the purchaser to pay is not one to answer for the debts of another since the maker was released but is a direct promise, based on sufficient consideration, to pay his own debt. Kushner v. Knopf, 227 Ky. 369 , 13 S.W.2d 271, 1929 Ky. LEXIS 886 ( Ky. 1929 ).

Assumption by grantee, as part of consideration for conveyance, of grantor’s debt to one who had erected improvements on the property conveyed is not within this section. McIntosh v. Turner, 239 Ky. 495 , 39 S.W.2d 966, 1931 Ky. LEXIS 805 ( Ky. 1931 ).

17. — — Parent for Child.

A promise by a father to indemnify sureties on son’s supersedeas bond is a direct and original one and not within subsection (4) of this section. Dyer v. Staggs, 217 Ky. 683 , 290 S.W. 494, 1927 Ky. LEXIS 38 ( Ky. 1927 ).

Promise by parent to pay reasonable expenses made necessary by act of minor child when claim was asserted against parent was not a promise to answer for the debts of another. Forsythe v. Rexroat, 234 Ky. 173 , 27 S.W.2d 695, 1929 Ky. LEXIS 456 ( Ky. 1929 ).

18. — — Partnership Debts.

A partner who makes verbal promises to pay that part of firm debt which is primarily due by another member of the firm is liable thereon, since each partner is bound for the entire indebtedness of the firm. Davis v. Abell, 185 Ky. 843 , 216 S.W. 104, 1919 Ky. LEXIS 383 ( Ky. 1919 ).

Oral agreement by partners to pay partnership note on payee’s release of retiring third partner is not within this section. Gannon v. Bronston, 246 Ky. 612 , 55 S.W.2d 358, 1932 Ky. LEXIS 789 ( Ky. 1932 ).

19. Contracts in Consideration of Marriage.

The oral loan of money by a woman and the man’s resulting contract to repay were made in contemplation of marriage but not in consideration of marriage, the marriage being only an incident, and she could recover the money in an action for money had and received, since the contract did not fall within the statute of frauds. Cornett v. Lark, 203 Ky. 767 , 263 S.W. 13, 1924 Ky. LEXIS 994 ( Ky. 1924 ).

Any promise for which the whole consideration or part of the consideration is either marriage or a promise of marriage is within this section except mutual promises of two (2) persons that are exclusively engagements to marry each other. Stevens v. Niblack's Adm'r, 256 Ky. 255 , 75 S.W.2d 770, 1934 Ky. LEXIS 364 ( Ky. 1934 ).

20. — Antenuptial.

An oral antenuptial agreement that the wife should retain title to her slaves, and should have the power to control and dispose of them after marriage, was within the statute of frauds. (decided under prior law) Potts v. Merrit, 53 Ky. 406 ( Ky. 1854 ).

An oral antenuptial contract stipulating that neither party should have any interest in the property of the other by reason of marriage was within the statute of frauds but, where it was followed by the parties, it was enforced as to their heirs. (decided under prior law) Mallory's Adm'r v. Mallory's Adm'r, 92 Ky. 316 , 17 S.W. 737, 13 Ky. L. Rptr. 579 , 1891 Ky. LEXIS 160 ( Ky. 1891 ).

Oral antenuptial agreement to give wife a house and sum of money in consideration of marriage is unenforceable. Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ).

Oral antenuptial agreement whereby parties agree to renounce their rights of survivorship in the estate of the other and to retain control of their individual property is unenforceable. Glazebrook v. Glazebrook's Ex'r, 227 Ky. 628 , 13 S.W.2d 776, 1929 Ky. LEXIS 930 ( Ky. 1929 ); Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

Part performance does not take oral antenuptial contracts out of the statute of frauds. Glazebrook v. Glazebrook's Ex'r, 227 Ky. 628 , 13 S.W.2d 776, 1929 Ky. LEXIS 930 ( Ky. 1929 ); Terry v. Terry, 264 Ky. 625 , 95 S.W.2d 282, 1936 Ky. LEXIS 381 ( Ky. 1936 ).

Antenuptial contract is required to be in writing but, even though such contract is in writing, it may be modified, abrogated or rescinded by a subsequent parol agreement. Hicks v. Oak's Adm'r, 233 Ky. 27 , 24 S.W.2d 917, 1930 Ky. LEXIS 488 ( Ky. 1930 ).

Oral antenuptial promise to convey property to prospective wife is unenforceable, and a conveyance made in pursuance thereof is fraudulent as to then existing creditors. Hatcher-Powers Shoe Co. v. Sparks, 237 Ky. 321 , 35 S.W.2d 564, 1930 Ky. LEXIS 850 ( Ky. 1930 ).

An unenforceable antenuptial contract within the statute of frauds does not prevent a wife from renouncing husband’s will under KRS 404.020 . Terry v. Terry, 264 Ky. 625 , 95 S.W.2d 282, 1936 Ky. LEXIS 381 ( Ky. 1936 ).

An oral promise made by wife was not sufficient to defeat her right to share in the marital assets since any oral promise made before the marriage would not be enforceable for failure to comply with the statute of frauds while any settlement agreement attempting to dispose of the marital property after the marriage must, according to KRS 403.180 , be in writing and signed by the parties to be effective. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

21. — Postnuptial.

Equity will not relieve husband from a fully executed, written, postnuptial contract made pursuant to an oral antenuptial contract. Powell's Adm'r v. Meyers, 64 S.W. 428, 23 Ky. L. Rptr. 795 (1901).

Parol postnuptial contracts whereby the husband and wife release all interest in the other’s personal estate on the other’s death are valid. Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

Where husband owned only realty and wife owned only personalty, an oral postnuptial agreement whereby each spouse waived right in all property of the other free from claim of the one or the other by reason of the marriage was void in contravention of the statute of frauds, since the wife could not divest her dower interest except by written contract and a contract unenforceable to one party was likewise unenforceable to the other for lack of mutuality. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

22. — For Benefit of Third Person.

Oral promise by putative father to mother of illegitimate child to leave his estate to the child if the mother would marry him is within subsection (5) of this section. Stevens v. Niblack's Adm'r, 256 Ky. 255 , 75 S.W.2d 770, 1934 Ky. LEXIS 364 ( Ky. 1934 ).

Oral promise for the benefit of a third person for which marriage is consideration in whole or in part is within subsection (5) of this section and therefore unenforceable. Stevens v. Niblack's Adm'r, 256 Ky. 255 , 75 S.W.2d 770, 1934 Ky. LEXIS 364 ( Ky. 1934 ).

23. Contracts for Sale of Real Estate.

Agreement whereby brother was to purchase interest of several brothers and sisters and to allow one sister to have half thereof upon the payment of that portion of the price was not a contract for the sale of land within this section. Siler v. Jones, 110 S.W. 255, 33 Ky. L. Rptr. 317 , 1908 Ky. LEXIS 334 (Ky. Ct. App. 1908).

Tender of deed by vendor pursuant to verbal contract of conveyance, which is refused by the vendee, will not take the case out of the statute of frauds. Todd v. Finley, 166 Ky. 546 , 179 S.W. 455, 1915 Ky. LEXIS 729 ( Ky. 1915 ); Cox v. Stamper, 221 Ky. 745 , 299 S.W. 723, 1927 Ky. LEXIS 811 ( Ky. 1927 ); Duncan v. Duncan, 259 Ky. 844 , 83 S.W.2d 485, 1935 Ky. LEXIS 386 ( Ky. 1935 ).

Where there is a verbal contract for the sale of both realty and personalty which is indivisible, since part is unenforceable, the whole must fail. Duteil v. Mullins, 192 Ky. 616 , 234 S.W. 192, 1921 Ky. LEXIS 115 ( Ky. 1921 ).

A contract for the sale of land must be in writing, signed by the party to be charged. Myers v. Taneyhill, 213 Ky. 333 , 280 S.W. 1115, 1926 Ky. LEXIS 510 ( Ky. 1926 ); Myers v. Brown, 110 S.W. 402, 33 Ky. L. Rptr. 525 (1908); Sizemore v. Bowling's Adm'r, 115 S.W. 737 ( Ky. 1909 ).

An oral agreement for the sale of real estate does not transfer or vest any title. Thomas v. Western Assurance Co., 271 Ky. 613 , 112 S.W.2d 1028, 1938 Ky. LEXIS 30 ( Ky. 1938 ).

Testimony of vague oral agreement with respect to title to real property with no terms specified was unenforceable under statute of frauds and, since appellee had no insurable ownership interest in real estate purchased at judicial sale, insurance company could recover insurance paid under policy insuring only ownership interest when property was destroyed by fire. Kentucky Farm Bureau Mut. Ins. Co. v. Cobb, 290 S.W.2d 606, 1955 Ky. LEXIS 6 ( Ky. 1955 ).

Real property cannot be abandoned since, by virtue of statute of frauds, there is but one way for a man to part with a fee simple title to real estate and that is by a writing signed by him, although he may be divested by adverse possession or a sale for taxes. Merritt v. Commonwealth, 386 S.W.2d 727, 1965 Ky. LEXIS 52 2 ( Ky. 1965 ), overruled, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

A listing agreement does not constitute an offer to any third party, and such holdings are compelled by the Statute of Frauds in Kentucky which requires a real estate sales contract to be in writing and signed by the party to be charged because the signature of the owner of real estate on a broker’s listing agreement is not tantamount to or legally sufficient as his signature required to accept a purchase offer on a separate sales contract. Kentucky Real Estate Com. v. Kachler, 819 S.W.2d 41, 1991 Ky. App. LEXIS 138 (Ky. Ct. App. 1991).

When a broker produces a purchase offer for the exact amount and in keeping with the other terms specified in the listing agreement, the owner is not bound to the purchase offeror if he, for whatever reason, does not want to sell to that offeror. Kentucky Real Estate Com. v. Kachler, 819 S.W.2d 41, 1991 Ky. App. LEXIS 138 (Ky. Ct. App. 1991).

Because there was no written contract establishing an alleged easement, plaintiffs’ argument that they should be vested with legal title to the easement was barred by the statute of frauds, and plaintiffs failed to establish circumstances that would entitled them to the equitable relief of easement by estoppel, implied easement, or unjust enrichment. Jones v. Sparks, 297 S.W.3d 73, 2009 Ky. App. LEXIS 200 (Ky. Ct. App. 2009).

Trial court properly granted appellants’ motion for summary judgment in a partition action for the sale of jointly owned real estate pursuant to KRS 389A.030 , because the statute of frauds, KRS 371.010(6), prevented enforcement of an alleged oral buy/sell agreement between the parties. There was no signed writing acknowledging the alleged buy/sell agreement. Smith v. Williams, 396 S.W.3d 296, 2012 Ky. LEXIS 80 ( Ky. 2012 ).

24. — Sufficient Writing.

A note to a real estate firm signed by the defendant authorizing firm to offer a certain sum of money for a specifically described lot was equivalent to an offer to the owner, and the owner having written his acceptance at the bottom of the instrument, the note constituted a sufficient memorandum to satisfy this section. Alford v. Wilson, 95 Ky. 506 , 26 S.W. 539, 16 Ky. L. Rptr. 70 , 1894 Ky. LEXIS 59 ( Ky. 1894 ).

Where one who purchased land at a judicial sale verbally transferred it to another before a conveyance was made to him, an order of the court reciting the transaction and directing the deed to be made to the transferee was sufficient to satisfy this section. Howard v. Howard, 96 Ky. 445 , 29 S.W. 285, 1895 Ky. LEXIS 95 ( Ky. 1895 ).

Where bidder at decretal sale signs writing describing the property and transferring it to another, the statute of frauds is satisfied and fact that consideration is not recited is immaterial. Ewing v. Stanley, 69 S.W. 724, 24 Ky. L. Rptr. 633 , 1902 Ky. LEXIS 264 (Ky. Ct. App. 1902).

A memorandum of a contract for sale of land need only state the essential elements of the contract; it is not inadequate because it fails to fix a date for performance, specify time for interest to run or provide how deferred payments shall be secured. Ferguson v. Harris, 200 Ky. 146 , 254 S.W. 329, 1923 Ky. LEXIS 34 ( Ky. 1923 ).

A letter accepting defendant’s verbal offer to take over a contract for the sale of land constituted a sufficient memorandum signed by the party to be charged. Benjamin v. Dinwiddie, 226 Ky. 106 , 10 S.W.2d 620, 1928 Ky. LEXIS 40 ( Ky. 1928 ).

Where seller of realty wrote agent, the signed letter transmitting unsigned proposal for buyer to sign was a signed proposal to contract and, when accepted and delivered to seller, there was a completed contract mutually binding on both parties although seller did not sign contract after it had been accepted. Dohrman v. Sullivan, 310 Ky. 463 , 220 S.W.2d 973, 1949 Ky. LEXIS 937 ( Ky. 1949 ).

Monthly receipts were sufficient to take oral agreement out of the statute of frauds where the receipts showed monthly amount paid and were signed and clearly designated realty involved and showed the payments represented part payment on purchase price of real estate. Phelps v. Ham, 273 S.W.2d 814, 1954 Ky. LEXIS 1202 ( Ky. 1954 ).

Letters exchanged between owner, highway department and court after an oral agreement to sell 30-foot right of way was made were sufficient to take the agreement out of the statute of frauds. Citizens Fidelity Bank & Trust Co. v. Curlin, 281 S.W.2d 537, 1955 Ky. LEXIS 197 ( Ky. 1955 ).

Sellers’ letters were sufficient writing to give agent authority to execute agreement for sale of real property. Denton v. Hicks, 290 S.W.2d 833, 1956 Ky. LEXIS 349 ( Ky. 1956 ).

Trial court properly granted summary judgment pursuant to CR 56 in favor of the sellers, listing agents, and real estate agent in the prospective purchasers’ appeal of an arbitrator’s award in favor of the sellers, listing agents, and real estate agent alleging that the purchasers were not bound by the arbitration clause in the contract for the sale of real property because they did not sign the contract; the arbitration clause was enforceable under the statute of frauds, KRS 371.010 , and under KRS 417.050 , because only the sellers, who were charged with the sale of the real property, had to sign the contract that was accepted by the purchasers, and the evidence indicated that the purchasers acted as though they had accepted the contract, as they had made a loan application, set a closing date, and signed a request for repairs to the property. Sweeney v. Theobald, 128 S.W.3d 498, 2004 Ky. App. LEXIS 32 (Ky. Ct. App. 2004).

25. — Insufficient Writing.

The execution and tender of deed as a compromise of a dispute is not a sufficient memorandum of an oral contract to take it without the statute of frauds and entitle grantee to specific performance. Richardson v. Isaacs, 118 S.W. 1003 ( Ky. 1909 ).

A check alleged to be given as consideration for a grant of a passageway did not constitute a sufficient memorandum. Allen v. Stailey, 119 S.W. 755 ( Ky. 1909 ).

A check drawn and signed by vendee purporting to be given “for lot” purchased by parol contract of sale did not constitute a memorandum signed by the party to be charged. Rhinehart v. Kelley, 145 Ky. 470 , 140 S.W. 653, 1911 Ky. LEXIS 877 ( Ky. 1911 ).

Deeds signed and delivered to grantor’s attorney for approval did not constitute a sufficient memorandum. Lowther v. Potter, 221 F. 881, 1915 U.S. App. LEXIS 1381 (6th Cir. Ky. 1915 ).

Where will authorized wife to convey or mortgage any land of the estate with the consent of the executor and trustee under the will, a memorandum of sale, signed by the trustee and executor but lacking the wife’s signature, was unenforceable by reason of this section. Nugent v. Humpich, 231 Ky. 122 , 21 S.W.2d 153, 1929 Ky. LEXIS 233 ( Ky. 1929 ).

Where vendor’s brother gave vendee a writing authorizing vendee to take possession of property, the memorandum did not satisfy this section in the absence of an agency relationship between the vendor and his brother. Sampson v. Cottongim, 249 Ky. 670 , 61 S.W.2d 309, 1933 Ky. LEXIS 583 ( Ky. 1933 ).

Blank indorsement by alleged vendor of real estate on check given to him by alleged vendee as part payment of purchase price did not constitute signing of memorandum by the party to be charged, within the meaning of this section. Campbell v. Pursifull, 300 Ky. 108 , 188 S.W.2d 108, 1945 Ky. LEXIS 513 ( Ky. 1945 ).

Where memorandum for the sale of land made no provision for a means of identifying the land and a deed to such land was signed by only one of tenants by the entirety but not delivered, there was no contract for the sale of land which could be enforced. Chaney v. Noland, 387 S.W.2d 308, 1964 Ky. LEXIS 544 (Ky. Ct. App. 1964).

26. — Sufficient Description.

Description of land as place where vendors now live is sufficient to satisfy this section. Foor v. Mechanics' Bank & Trust Co., 144 Ky. 682 , 139 S.W. 840, 1911 Ky. LEXIS 693 ( Ky. 1911 ).

Designation of tract of land as “her Muddy Creek farm” was sufficient to satisfy this section. Bates v. Harris, 144 Ky. 399 , 138 S.W. 276, 1911 Ky. LEXIS 619 ( Ky. 1911 ).

A memorandum is sufficient if it identifies the property when it is read in the light of the circumstances of possession or ownership and of the situation of the parties when the negotiations took place and the writing was made. Montgomery v. Graves, 301 Ky. 260 , 191 S.W.2d 399, 1945 Ky. LEXIS 731 ( Ky. 1945 ).

Where writing within itself or by reference to other writings furnishes some description or designation or sufficient data so that, by aid of parol evidence, no question as to intention of parties can arise, writing is sufficient to take oral contract for conveyance of realty out of statute of frauds. Montgomery v. Graves, 301 Ky. 260 , 191 S.W.2d 399, 1945 Ky. LEXIS 731 ( Ky. 1945 ).

In action by purchasers of land for specific performance, writing executed by vendors in which property sold was described as “my place” was sufficient to take transaction out of statute of frauds. Burton v. Lafavers, 254 S.W.2d 730, 1952 Ky. LEXIS 1160 ( Ky. 1952 ).

Memorandum of sale must contain a description of the property involved sufficient to render it capable of identification. Wilson v. Hoffman, 298 S.W.2d 317, 1957 Ky. LEXIS 375 ( Ky. 1957 ).

27. — Insufficient Description.

A written contract for the sale of “115 acres of land” was without force by reason of the insufficiency of description. Wortham v. Stith, 66 S.W. 390, 23 Ky. L. Rptr. 1882 , 1902 Ky. LEXIS 246 (Ky. Ct. App. 1902).

Where vendor gives possession to vendee of tract of land under contract of which there is written memorandum, vendor cannot later assert that the memorandum was too indefinite to satisfy this section. Ferguson v. Cabell, 141 Ky. 499 , 133 S.W. 539, 1911 Ky. LEXIS 44 ( Ky. 1911 ).

When a description contained in a writing, either by reference to a watercourse, town, or some well-known local object, or to a former conveyance of record, so identifies the property which is the subject matter of the contract that it may be designated or pointed out by parol testimony by reason of such reference in the writing to such stream, town, conveyance, or local object, then parol testimony is competent for that purpose; but when the description in the writing has no such reference and it is necessary to resort to parol testimony to identify the subject matter of the contract as distinguished from a designation of it, then parol evidence is incompetent and the writing is insufficient under this section. Hall v. Cotton, 167 Ky. 464 , 180 S.W. 779, 1915 Ky. LEXIS 858 ( Ky. 1915 ) ( Ky. 1915 ).

Description of property as “Sanders lease, Allen County” was insufficient. Kentucky Counties Oil Co. v. Cupler, 204 Ky. 799 , 265 S.W. 334, 1924 Ky. LEXIS 582 ( Ky. 1924 ).

Description of property as “my town lots” was insufficient to satisfy this section, and name of bank printed on sheet of paper on which contract was written tended to show where contract was drawn and not the location of the land. Simpson v. Peavyhouse, 207 Ky. 155 , 268 S.W. 814, 1925 Ky. LEXIS 38 ( Ky. 1925 ).

Where vendor executed and delivered deed, it was immaterial that written offer of purchase signed by the purchaser did not contain a description of the property. Hamblin v. Walters, 246 Ky. 247 , 54 S.W.2d 907, 1932 Ky. LEXIS 737 ( Ky. 1932 ).

A memorandum describing land sold only as “baby farm” in “Anglin Addition,” without showing town or city, owner, or acreage, was insufficient to meet the requirements of the statute of frauds. Dailey v. Anglin, 297 Ky. 266 , 180 S.W.2d 78, 1944 Ky. LEXIS 722 ( Ky. 1944 ).

28. — Boundary Agreements.

An oral agreement establishing a boundary line to be valid had to be acquiesced in for some time. (decided under prior law) Boyd's Lessee v. Graves, 17 U.S. 513, 4 L. Ed. 628, 1819 U.S. LEXIS 329 (U.S. 1819).

Surveyor or owner’s son did not have authority to make a parol agreement on behalf of owner settling boundary dispute. Higginson v. Schaneback, 66 S.W. 1040, 23 Ky. L. Rptr. 2230 , 1902 Ky. LEXIS 504 (Ky. Ct. App. 1902).

Where the dividing line is not in dispute or is capable of being ascertained, an oral agreement establishing a boundary line is an exchange of land and is within this section. Amburgy v. Burt & Brabb Lumber Co., 121 Ky. 580 , 89 S.W. 680, 28 Ky. L. Rptr. 551 , 1905 Ky. LEXIS 245 ( Ky. 1905 ).; Hoskins v. Morgan, 197 Ky. 736 , 248 S.W. 210, 1923 Ky. LEXIS 733 ( Ky. 1923 ); Duff v. Turner, 201 Ky. 501 , 256 S.W. 1105, 1923 Ky. LEXIS 301 ( Ky. 1923 ).

If an agreement establishing a boundary did not grow out of a bona fide dispute and gives one of the parties thereto property admittedly belonging to the other, it is within this section and unenforceable. Clarke v. Clarke, 90 S.W. 244, 28 Ky. L. Rptr. 704 (1906).

Where there is a bona fide dispute as to the dividing line between adjoining owners, a parol agreement establishing the line is not within this section nor within the law regulating conveyances, since parties have not attempted to pass title but merely agreed to make that certain which they regarded as uncertain. Warden v. Addington, 131 Ky. 296 , 115 S.W. 241, 1909 Ky. LEXIS 35 ( Ky. 1909 ); Cheatham v. Hicks, 88 S.W. 1093, 28 Ky. L. Rptr. 66 (1905); Berry v. Evans, 89 S.W. 12, 28 Ky. L. Rptr. 22 (1905); Caudill v. Bayes, 89 S.W. 114, 28 Ky. L. Rptr. 182 (1905); Walker v. Cornett, 122 S.W. 841 ( Ky. 1909 ); Keen v. Osborne, 185 Ky. 647 , 215 S.W. 798, 1919 Ky. LEXIS 35 2 ( Ky. 1919 ); High Gravity Oil Co. v. Southwestern Petroleum Co., 290 F. 370, 1923 U.S. App. LEXIS 1831 (6th Cir. Ky. 1923 ); Debord v. Cline, 212 Ky. 7 , 278 S.W. 172, 1925 Ky. LEXIS 1061 ( Ky. 1925 ); Howard v. Howard, 271 Ky. 7 73, 113 S.W.2d 434, 1938 Ky. LEXIS 54 ( Ky. 1938 ); Hill v. Kerr, 277 Ky. 105 , 125 S.W.2d 1005, 1939 Ky. LEXIS 618 ( Ky. 1939 ); Cassada v. Vanhook, 282 Ky. 383 , 138 S.W.2d 1003, 1940 Ky. LEXIS 202 ( Ky. 1940 ); Faulkner v. Lloyd, 253 S.W.2d 972, 1952 Ky. LEXIS 1126 ( Ky. 1952 ).

In cases wherein there was a bona fide dispute as to the location of a dividing line between the lands, an oral agreement fixing the line by marking same or building a fence thereon was not prohibited by the statute of frauds because the parties did not thereby undertake to or pass title as must be done by written contract or conveyance. Garvin v. Threlkeld, 173 Ky. 262 , 190 S.W. 1092, 1917 Ky. LEXIS 447 ( Ky. 1917 ); Holbrooks v. Wright, 187 Ky. 732 , 220 S.W. 524, 1919 Ky. LEXIS 390 ( Ky. 1919 ).

It is not necessary that acquiescence in an oral agreement establishing a boundary line be for the period of limitations. Turner v. Bowens, 180 Ky. 755 , 203 S.W. 749, 1918 Ky. LEXIS 155 ( Ky. 1918 ).

An oral agreement establishing a boundary line to be valid must be acquiesced in for some time. Bordes v. Leece, 183 Ky. 146 , 208 S.W. 780, 1919 Ky. LEXIS 452 ( Ky. 1919 ); Holbrooks v. Wright, 187 Ky. 732 , 220 S.W. 524, 1919 Ky. LEXIS 390 ( Ky. 1919 ); Turner v. McCarty, 276 Ky. 481 , 124 S.W.2d 753, 1939 Ky. LEXIS 543 ( Ky. 1939 ).

If the land is identified with certainty, the boundaries may be established by parol testimony. Pope v. Myers, 218 Ky. 731 , 292 S.W. 318, 1927 Ky. LEXIS 240 ( Ky. 1927 ).

Where the dividing line is uncertain and there is a bona fide dispute as to its location and the parties agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by this section. Wolf v. Harper, 313 Ky. 688 , 233 S.W.2d 409, 1950 Ky. LEXIS 963 ( Ky. 1950 ).

29. — Exchange of Land.

A parol agreement settling adverse claims to land which actually constitutes an exchange of land is unenforceable. Begley v. Treadway, 93 S.W. 1045, 29 Ky. L. Rptr. 493 (1906).

Where there is an agreement to exchange lands, both parties are vendors; therefore both parties must sign the memorandum in order to satisfy the statute of frauds. Henry v. Reeser, 153 Ky. 8 , 154 S.W. 371, 1913 Ky. LEXIS 759 ( Ky. 1913 ); Green v. Elliott County Board of Education, 244 Ky. 500 , 51 S.W.2d 459, 1932 Ky. LEXIS 455 ( Ky. 1932 ); Sampson v. Cottongim, 249 Ky. 670 , 61 S.W.2d 309, 1933 Ky. LEXIS 583 ( Ky. 1933 ).

An oral compromise which calls for an exchange of land is within the statute of frauds. Sowders v. Gingell, 174 Ky. 127 , 191 S.W. 896, 1917 Ky. LEXIS 163 ( Ky. 1917 ).

The result of a parol agreement must not be a mere exchange of land. Standifer v. Combs, 184 Ky. 708 , 212 S.W. 921, 1919 Ky. LEXIS 124 ( Ky. 1919 ).

Where the true dividing line between two (2) tracts of lands is in doubt, and there is a dispute between the adjoining owners as to the exact location of the line, which depends upon variable facts or circumstances not susceptible of certain determination, a parol agreement between the adjoining owners establishing a line as the true dividing line is not an exchange of lands, and is not within the statute of frauds. Howard v. Howard, 271 Ky. 773 , 113 S.W.2d 434, 1938 Ky. LEXIS 54 ( Ky. 1938 ); Faulkner v. Lloyd, 253 S.W.2d 972, 1952 Ky. LEXIS 1126 ( Ky. 1952 ).

An agreement to exchange title to real estate must ordinarily be in writing and be signed by both parties in order to be enforceable. Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986).

30. — Standing Timber.

Prior to enactment of KRS 371.100 , a contract for the sale of standing timber was not required to be in writing if immediate severance was contemplated. Second Nat'l Bank v. Rouse, 142 Ky. 612 , 134 S.W. 1121, 1911 Ky. LEXIS 249 ( Ky. 1911 ); King v. Cheatham, 104 S.W. 751, 31 Ky. L. Rptr. 1176 (1907).

A sale of standing trees, in contemplation of their immediate severance from the soil, by either vendor or vendee, is a constructive severance of them and they pass as chattels. Patton v. Lucy, 285 Ky. 694 , 148 S.W.2d 1039, 1940 Ky. LEXIS 611 ( Ky. 1940 ). But see KRS 371.100 requiring all contracts for standing timber, whether realty or personalty, to be in writing Stephens v. Kidd, 298 Ky. 38 , 181 S.W.2d 688, 1944 Ky. LEXIS 836 ( Ky. 1944 ).

31. — Coal and Minerals.

A verbal contract to pay an agent a certain amount of royalty for finding a suitable lessee for a mining leasehold amounted to a transfer of an interest in land and was unenforceable. Nisbet v. Dozier, 204 Ky. 204 , 263 S.W. 736, 1924 Ky. LEXIS 423 ( Ky. 1924 ).

Subterranean waters are regarded as minerals constituting part of the land, and a contract in relation thereto is within the statute of frauds. Goodloe v. Richmond, 272 Ky. 100 , 113 S.W.2d 834, 1937 Ky. LEXIS 694 ( Ky. 1937 ).

A coal lease is an interest in real estate, and an oral agreement for five (5) year lease was within statute of frauds. Har-Bel Coal Co. v. Asher Coal Mining Co., 414 S.W.2d 128, 1966 Ky. LEXIS 11 ( Ky. 1966 ).

32. — Oil and Gas Leases.

Oil and gas are minerals, and are a part of the realty, and a lease giving to the lessee the right to explore certain lands and remove therefrom the oil and gas is a contract for the transfer and sale of an interest in land and is required to be in writing. Livery v. Elkhorn Coal Co., 101 F. Supp. 1014, 1952 U.S. Dist. LEXIS 2018 (D. Ky. 1952 ), aff'd, 206 F.2d 396, 1953 U.S. App. LEXIS 3987 (6th Cir. Ky. 1953 ).

An oil and gas lease which gives the lessee the right to search for and remove oil and gas conveys an interest in land and is required to be in writing. Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818 , 178 S.W. 1084, 1915 Ky. LEXIS 607 ( Ky. 1915 ).

An oil and gas lease is an interest in real estate within the meaning of this section. Appleby v. Buck, 351 S.W.2d 494, 1961 Ky. LEXIS 165 ( Ky. 1961 ).

Description of an oil and gas lease as “the Bodo Lloyd Oil Lease WI 32/32 of the 7/8 WI” written on a check drawn to pay for the lease, and as “Bodo Lloyd Lease” on a letter cancelling the transaction was not sufficient to remove case from prohibition of this section. Owen v. Dayson, 562 S.W.2d 647, 1977 Ky. App. LEXIS 897 (Ky. Ct. App. 1977).

The conveyance or assignment of a working interest in an oil and gas lease constitutes an interest in real estate within the meaning of the statute of frauds. Owen v. Dayson, 562 S.W.2d 647, 1977 Ky. App. LEXIS 897 (Ky. Ct. App. 1977).

33. — Working Interests in Oil Wells.

Five (5) receipts for $450 bearing notation “1/32 interest C. Miller lease *** Daviess County, Kentucky” were insufficient to identify the property of alleged oral agreement to assign working interest in oil lease and there was no enforceable agreement which equity could order specifically performed. Randlett v. Sharp, 328 S.W.2d 548, 1959 Ky. LEXIS 132 ( Ky. 1959 ).

A “working interest” in an oil well was an interest in real estate. Barnett v. Hagans, 445 S.W.2d 839, 1969 Ky. LEXIS 181 ( Ky. 1969 ).

Where the claim asserted was predicated upon a working interest in an oil well and the agreement was not in writing, the claim was unenforceable under the statute of frauds. Barnett v. Hagans, 445 S.W.2d 839, 1969 Ky. LEXIS 181 ( Ky. 1969 ).

34. — Life Estates.

Agreement whereby life tenant relinquished all rights in entire life estate except to take such fire wood as she might need for her own use was a sale of land rather than a lease and within subsection (6) of this section. Miller v. Hart, 122 Ky. 494 , 91 S.W. 698, 29 Ky. L. Rptr. 73 , 1906 Ky. LEXIS 42 ( Ky. 1906 ).

An oral contract to board and maintain owner of land in exchange for use of life estate in land is within the statute of frauds, and is no defense to an action by the owner to recover possession. Hampton v. Glass, 116 S.W. 243 ( Ky. 1909 ).

An oral agreement by the owner of land to permit another to have the use, rents and profits of the land for the latter’s life, in consideration of paying the taxes and maintaining the property, is not enforceable, whether regarded as a lease for life or a gift of a life estate. Cannon v. Carr, 292 Ky. 793 , 168 S.W.2d 21, 1943 Ky. LEXIS 740 ( Ky. 1943 ).

An agreement by a son that his father could live on farm for life if he took care of the farm was a parol gift of a life estate in real property and void. Ellis v. Ellis, 275 S.W.2d 909, 1955 Ky. LEXIS 390 ( Ky. 1955 ).

35. — Right of Dower.

Oral agreement between husband owning real estate and wife owning personal property, whereby each waived all rights by reason of marriage in property of other, was void as wife could not orally dispose of her inchoate dower right in husband’s real estate. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

The right of dower vests at time of marriage or at time of acquisition of subsequently acquired property, and is a vested interest which can be released or relinquished only in manner provided for disposal of real property. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

36. — Options.

Where written contract for the sale of mineral rights provided that it was to be null and void if the consideration was not paid before a certain time, it constituted an option, and a parol agreement made after the lapse of the period for payment was unenforceable as it was within the statute of frauds. McConathy v. Lanham, 116 Ky. 735 , 76 S.W. 535, 25 Ky. L. Rptr. 971 , 1903 Ky. LEXIS 235 ( Ky. 1903 ).

When a party has option to buy at a certain designated price and he does not do so and he has not otherwise bound himself by a writing to take and pay for the property, the party giving the option cannot recover damages. Stewart v. Gardner, 152 Ky. 120 , 153 S.W. 3, 1913 Ky. LEXIS 590 ( Ky. 1913 ).

An option contract for sale of real estate signed by the owner is valid if delivered to and accepted by the optionee and the acceptance need not be in writing. Klatch v. Simpson, 237 Ky. 84 , 34 S.W.2d 951, 1931 Ky. LEXIS 546 ( Ky. 1931 ).

Oral agreement that former owner of land could repurchase it from present owner at any time during period former owner continued to pay rent to present owner was within statute of frauds. Spicer v. Elmore, 292 Ky. 144 , 166 S.W.2d 276, 1942 Ky. LEXIS 61 ( Ky. 1942 ).

Extension of option to purchase real estate by an oral agreement was within the statute of frauds and unenforceable. May v. Mohr, 282 S.W.2d 144, 1955 Ky. LEXIS 229 ( Ky. 1955 ).

Oral exercise of an option to purchase real property was not violative of the Statute of Frauds. River City Dev. Corp. v. Slemmer, 781 S.W.2d 525, 1989 Ky. App. LEXIS 150 (Ky. Ct. App. 1989).

37. — Not Constituting Constructive Trust.

Alleged oral agreement between purchaser and mother of infant seller whereby land was to be purchased for their mother’s use for life was without consideration and, not being in writing, was clearly within the statute of frauds and there was no enforceable trust. Wormald's Guardian v. Heinze, 90 S.W. 1064, 28 Ky. L. Rptr. 1022 (1906).

A parol agreement between purchasers of property to hold it for the use of another did not constitute a trust and was within the statute of frauds. Wormald's Guardian v. Heinze, 90 S.W. 1064, 28 Ky. L. Rptr. 1022 (1906).

An oral agreement whereby mortgagee agreed to buy the property when sold at a judicial sale for the mortgagor’s surety, who neither furnished the purchase money nor had an interest in, or bona fide claim to, the land did not constitute a resulting trust and the agreement was within the statute of frauds. Doom v. Brown, 171 Ky. 469 , 188 S.W. 475, 1916 Ky. LEXIS 375 ( Ky. 1916 ).

Evidence was not sufficient to establish a constructive trust where agreement to convey land was an unenforceable agreement. Deaton v. Bowling, 302 Ky. 829 , 196 S.W.2d 603, 1946 Ky. LEXIS 762 ( Ky. 1946 ).

Constructive trust never arises except where the holder of the legal title obtains it through fraud, misrepresentation, concealment, undue influence, duress or some other wrongful act whereby another is deprived of the title to his property and, where husband testified he borrowed down payment from his wife and wife testified she contributed directly on purchase price of the real estate, legal title of which was put in the name of wife’s 15-year-old daughter by a third party, there was a serious question concerning the source of the consideration paid for the conveyance, the alleged promise was made by a person other than the holder of the legal title, and there was no evidence the holder of legal title could have been guilty of actual or constructive fraud; thus, there was no constructive trust in favor of the husband. Lowe v. Lowe, 312 Ky. 640 , 229 S.W.2d 442, 1950 Ky. LEXIS 728 ( Ky. 1950 ).

38. — Adverse Possession.

Use of a passageway pursuant to an oral grant for the period of limitations gives a prescriptive right, since the use is presumed to be in harmony with the grant. Browning v. Davis, 53 S.W. 9, 21 Ky. L. Rptr. 786 , 1899 Ky. LEXIS 371 (Ky. Ct. App. 1899); Settle v. Cox, 89 S.W. 534, 28 Ky. L. Rptr. 510 (1905).

A parol sale, gift or exchange of land is within the statute of frauds and unenforceable, but where one takes possession under such sale, gift, or exchange and holds it adversely to the former owner and all others for the statutory period of limitations, title to the land is perfected. New Domain Oil Gas Co. v. Gaffney Oil Co., 134 Ky. 792 , 121 S.W. 699, 1909 Ky. LEXIS 443 ( Ky. 1909 ); Blanton v. Howard, 148 Ky. 547 , 146 S.W. 1089, 1912 Ky. LEXIS 454 ( Ky. 1912 ); Henderson v. Clark, 163 Ky. 192 , 173 S.W. 367, 1915 Ky. LEXIS 201 ( Ky. 1915 ); Elam v. Alexander, 174 Ky. 39 , 191 S.W. 666, 1917 Ky. LEXIS 145 ( Ky. 1917 ); Maynard v. Maynard, 178 Ky. 478 , 199 S.W. 26, 1917 Ky. LEXIS 752 ( Ky. 1917 ).

Oral contracts may be proved to establish privity and continuity of possession between adverse possessors, as the action is not one to enforce the contract. H. B. Jones Coal Co. v. Mays, 225 Ky. 365 , 8 S.W.2d 626, 1928 Ky. LEXIS 786 ( Ky. 1928 ).

39. — Assignment.

An assignment of a contract for the sale of land not in writing is not specifically enforceable but, where defendant by answer admitted the contract and the breach thereof, plaintiff was entitled to damages. Bryant v. Everley, 57 S.W. 231, 22 Ky. L. Rptr. 345 , 1900 Ky. LEXIS 637 (Ky. Ct. App. 1900).

It is essential to the valid assignment of a title bond that it be in writing and signed by the party to be charged as it is that the original contract should be in writing and signed by the party to be charged. Coldwell v. Davidson, 187 Ky. 490 , 219 S.W. 445, 1920 Ky. LEXIS 151 ( Ky. 1920 ).

The assignment of an executory written contract for the conveyance of real estate is a transfer of an interest in land and must be in writing. Thomas v. Haly Coal Co., 189 Ky. 698 , 225 S.W. 1053, 1920 Ky. LEXIS 500 ( Ky. 1920 ).

An assignment of an oil and gas lease, to be enforceable, must be in writing, signed by the assignor or vendor who is the party to be charged. Kash v. United Star Oil Co., 192 Ky. 422 , 233 S.W. 898, 1921 Ky. LEXIS 86 ( Ky. 1921 ).

40. — Agent.

Where agent signed principal’s name to a contract to convey realty, preparation and tender of deed was recognition and evidence of agent’s authority. Whitworth v. Pool, 96 S.W. 880, 29 Ky. L. Rptr. 1104 (1906).

Where one employs another, by parol agreement, to buy land for him, and the agent buys it for himself with his own money, the oral agreement is within the statute of frauds and principal cannot compel the agent to convey the land to him. Day v. Amburgey, 147 Ky. 123 , 143 S.W. 1033, 1912 Ky. LEXIS 215 ( Ky. 1912 ); Kimmons v. Barnes & Metcalfe, 205 Ky. 502 , 266 S.W. 891, 1924 Ky. LEXIS 247 ( Ky. 1924 ).

A person purportedly acting as agent in a real estate deal but in fact without authority is not liable for breach of warranty or in deceit, where the contract of sale is not in writing as required by this section. Bloom v. Young, 205 Ky. 142 , 265 S.W. 501, 1924 Ky. LEXIS 64 ( Ky. 1924 ).

Where mortgagor’s and mortgagee’s attorneys orally agreed that mortgagee should bid on mortgaged realty at foreclosure sale and assign the bid to mortgagor’s daughter who was to pay the mortgage debt by a certain date, such contract was not unenforceable under statute of frauds because daughter acted as agent of her mother who had title to the mortgaged realty. Hunter v. Hunt, 296 Ky. 769 , 178 S.W.2d 609, 1944 Ky. LEXIS 640 ( Ky. 1944 ).

41. — Rights Under Contracts in Violation of Statute.

Though the vendor of land by parol contract, consented, in order to defraud the purchaser, to a cancellation of the deed under which vendor held and a conveyance of the land by his grantor to another, the purchaser under the parol contract who was never in possession was without remedy. Bishop v. Martin, 65 S.W. 807, 23 Ky. L. Rptr. 1494 , 1901 Ky. LEXIS 392 (Ky. Ct. App. 1901).

Although a parol contract for the sale of land is unenforceable, the parties may perform it. Miller v. Johnson, 213 Ky. 473 , 281 S.W. 467, 1926 Ky. LEXIS 543 ( Ky. 1926 ).

Equity, although unable to grant specific performance of an alleged contract of father-in-law to convey land to son-in-law and improved by son-in-law in reliance on the promise which contract was within the statute of frauds, will extend to the one making the improvements a lien on the land for the enhanced value or, in the absence of enhanced value, permission to remove the improvements. McMillen v. Bailey, 269 Ky. 194 , 106 S.W.2d 638, 1937 Ky. LEXIS 576 ( Ky. 1937 ).

42. — — Return of Consideration Paid.

An oral agreement to grant a right of way is unenforceable, but vendee is entitled to a return of consideration paid by him. Barnes v. Beverley, 32 S.W. 174, 17 Ky. L. Rptr. 586 (1895).

A parol agreement for the sale of land will not be enforced, but vendee is entitled to a return of consideration paid by him. Curnette v. Curnette, 55 S.W. 422, 21 Ky. L. Rptr. 1422 , 1900 Ky. LEXIS 515 ( Ky. 1900 ).

Where vendor under parol contract elects to make deed rather than return consideration, deed is not void and vendor cannot have it declared so. McKinley v. McKinley, 66 S.W. 831, 23 Ky. L. Rptr. 2314 , 1902 Ky. LEXIS 520 (Ky. Ct. App. 1902).

A parol contract by father to convey land to illegitimate son if the mother permitted the son to remain with him could not be specifically enforced as it was within the statute of frauds but while the son could not be adjudged the land, the value of the thing promised could be estimated and compensation for the breach of the contract could be adjudged, the intestate having received the consideration upon which his promise rested. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 204 , 80 S.W. 803, 26 Ky. L. Rptr. 63 , 1904 Ky. LEXIS 29 ( Ky. 1904 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

Vendee in possession of land under parol contract of sale of land has a lien on the land for the purchase money paid and interest thereon from the time of vendor’s refusal to convey, and the enhancement of the land by improvements subject to a credit for the rents after the vendor refused to convey. Lucas v. McGuire, 96 S.W. 867, 29 Ky. L. Rptr. 1068 (1906); Grainger v. Jenkins, 156 Ky. 257 , 160 S.W. 926, 1913 Ky. LEXIS 400 ( Ky. 1913 ); Sizemore v. Davidson, 183 Ky. 166 , 208 S.W. 810, 1919 Ky. LEXIS 455 ( Ky. 1919 ); Zanone v. Tashgian, 231 Ky. 454 , 21 S.W.2d 825, 1929 Ky. LEXIS 310 ( Ky. 1929 ); Vogel v. Massey, 256 Ky. 419 , 76 S.W.2d 257, 1934 Ky. LEXIS 425 ( Ky. 1934 ).

Where vendee pays purchase price and takes possession under a parol contract for the sale of land, and vendor later refuses to convey, vendee has lien on land and he is not required to surrender possession until he has been reimbursed. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ); Back v. Back's Adm'r, 281 Ky. 282 , 135 S.W.2d 911, 1940 Ky. LEXIS 21 ( Ky. 1940 ).

Where one takes possession of land under a parol sale, he cannot defeat an action for recovery of the land by the vendor, nor can he enforce specific performance, but he does have an equitable lien on the land for consideration paid by him, and for the reasonable value of improvements made thereon in good faith. Coffey v. Humble, 154 Ky. 708 , 159 S.W. 554, 1913 Ky. LEXIS 152 ( Ky. 1913 ).

If vendee under parol agreement has not been put in possession, he should be adjudged a lien on the land to secure repayment of the consideration with interest. Grace v. Gholson, 159 Ky. 359 , 167 S.W. 420, 1914 Ky. LEXIS 817 ( Ky. 1914 ).

The right to a return of consideration cannot be defeated by vendor’s offer, made after suit is instituted, to perform the contract. Grace v. Gholson, 159 Ky. 359 , 167 S.W. 420, 1914 Ky. LEXIS 817 ( Ky. 1914 ).

Although one who has paid money to another under a parol contract for the conveyance of land may not obtain specific performance of the contract because of the statute of frauds, he may nevertheless be entitled to recover the money paid in an action in assumpsit for money had and received. Tidwell v. O'Bryan's Adm'r, 297 Ky. 749 , 181 S.W.2d 260, 1944 Ky. LEXIS 806 ( Ky. 1944 ).

Oral agreement to sell real estate came within the statute of frauds which either party could have rescinded but purchaser was entitled to recover the amount paid for the property less a reasonable rental value. Newby v. Wilson, 307 S.W.2d 927, 1957 Ky. LEXIS 127 ( Ky. 1957 ).

43. — — Payments for Services and Improvements.

Where the consideration has been fully performed under oral agreement to devise realty, the measure of recovery depends on the character of the service; the benefit to the intestate will be the measure of recovery if such benefit can be ascertained but where the benefit is not susceptible of estimation, the claimant will be awarded the value of the property promised. Broughton v. Broughton, 203 Ky. 692 , 262 S.W. 1089, 1924 Ky. LEXIS 978 ( Ky. 1924 ); Jordan's Adm'x v. Burton, 281 Ky. 309 , 135 S.W.2d 684, 1939 Ky. LEXIS 34 ( Ky. 1939 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

An oral agreement to devise realty is within the statute of frauds, but party performing services under such agreement may recover the reasonable value of such services. Haralambo's Ex'r v. Christopher, 231 Ky. 550 , 21 S.W.2d 983, 1929 Ky. LEXIS 324 ( Ky. 1929 ); Ruehl v. Davidson's Ex'r, 237 Ky. 53 , 34 S.W.2d 937, 1931 Ky. LEXIS 539 ( Ky. 1931 ), limited, Flynn's Ex'r v. Mullett, 254 Ky. 90 , 70 S.W.2d 978, 1934 Ky. LEXIS 18 ( Ky. 1934 ); Hinton v. Hinton's Ex'r, 239 Ky. 664 , 40 S.W.2d 296, 1931 Ky. LEXIS 842 ( Ky. 1931 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

The enhanced value of property by reason of improvements, and not the cost of improvements, is the measure of recovery allowed purchaser when parol contract is repudiated. Duncan v. Duncan, 259 Ky. 844 , 83 S.W.2d 485, 1935 Ky. LEXIS 386 ( Ky. 1935 ).

Where corporation, by oral contract, agreed to furnish plaintiff certain land rent free if he would continue his duties until all litigation over tract of land was terminated, the agreement was within the statute of frauds, but a promise to pay for services and improvements to the land is implied by law. Holcomb v. Kentucky Union Co., 262 Ky. 192 , 90 S.W.2d 25, 1936 Ky. LEXIS 23 ( Ky. 1936 ).

44. — — Performance by Vendor.

Plaintiff in ejectment who tendered a deed with his reply that the agreement under which defendant was in possession was oral and within the statute of frauds waives his right to rely on the invalidity of the contract. Smith v. Frankfort & C. R. Co., 72 S.W. 1088, 24 Ky. L. Rptr. 2040 (1903).

An execution and delivery of deed by vendor subsequent to a parol agreement to convey does take the case out of the statute of frauds, although a tender of deed by vendor refused by vendee does not. Johns v. Parsons, 185 Ky. 513 , 215 S.W. 194, 1919 Ky. LEXIS 331 ( Ky. 1919 ); Surgener v. Smith, 188 Ky. 218 , 221 S.W. 560, 1920 Ky. LEXIS 259 ( Ky. 1920 ).

Purchaser of house and lot under verbal contract could not recover back money paid on purchase price, where vendor had not repudiated the contract and was ready, willing, and able to perform it, even though contract was unenforceable against him either in law or equity. Watkins v. Wells, 303 Ky. 728 , 198 S.W.2d 662, 1946 Ky. LEXIS 916 ( Ky. 1946 ).

Vendor under an oral contract to sell real estate must be in a position to perform his part of the contract if he is to retain any part of the consideration paid in advance. Triplett v. Knight, 309 Ky. 349 , 217 S.W.2d 802, 1949 Ky. LEXIS 709 ( Ky. 1949 ).

45. — — Performance by Vendee.

Performance by the promisee in an oral agreement to devise land does not take the contract out of the provisions of the statute of frauds. Head v. Schwartz' Ex'r, 304 Ky. 798 , 202 S.W.2d 623, 1947 Ky. LEXIS 735 ( Ky. 1947 ).

46. — — Part Performance.

Part performance does not satisfy this section when a contract for the sale of land is not in writing, signed by the party to be charged. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 204 , 80 S.W. 803, 26 Ky. L. Rptr. 63 , 1904 Ky. LEXIS 29 ( Ky. 1904 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

47. — Miscellaneous Within Statute.

Alleged verbal contract whereby H was to retain possession of W’s property after her death in consideration of improvements made by H was within the statute of frauds. Nall v. Miller, 95 Ky. 448 , 25 S.W. 1106, 15 Ky. L. Rptr. 862 , 1894 Ky. LEXIS 42 ( Ky. 1894 ).

A verbal agreement to relocate a passageway granted by deed is within the statute of frauds and unenforceable. Jennett v. Sherrill, 205 Ky. 307 , 265 S.W. 781, 1924 Ky. LEXIS 94 ( Ky. 1924 ).

A parol covenant by the grantor affecting other property owned by him and benefiting that conveyed is within this section. Mueller v. Storrs, 212 Ky. 176 , 278 S.W. 557, 1925 Ky. LEXIS 1098 ( Ky. 1925 ).

An alleged oral agreement whereby plaintiff and defendant were to purchase realty and each was to receive title to a portion thereof did not constitute a partnership and the agreement was within statute of frauds and unenforceable. Ewing v. Clore, 219 Ky. 329 , 292 S.W. 824, 1927 Ky. LEXIS 328 ( Ky. 1927 ).

A verbal agreement to create a lien upon real estate in the possession of the promisor is within the statute of frauds and is ineffective for any purpose. Avey v. Via, 225 Ky. 155 , 7 S.W.2d 1057, 1928 Ky. LEXIS 739 ( Ky. 1928 ).

It is well settled that an oral contract for the partition of lands comes within the statute of frauds. Green v. Elliott County Board of Education, 244 Ky. 500 , 51 S.W.2d 459, 1932 Ky. LEXIS 455 ( Ky. 1932 ); Henderson v. Clark, 163 Ky. 192 , 173 S.W. 367, 1915 Ky. LEXIS 201 ( Ky. 1915 ); Sampson v. Cottongim, 249 Ky. 670 , 61 S.W.2d 309, 1933 Ky. LEXIS 583 ( Ky. 1933 ); Barnett v. Barnett, 283 Ky. 710 , 142 S.W.2d 975, 1940 Ky. LEXIS 392 ( Ky. 1940 ).

Mere fact that parties are to hold real estate as joint tenants does not establish partnership relation and this section applies. Minor v. Perry, 19 F. Supp. 449, 1937 U.S. Dist. LEXIS 1899 (D. Ky. 1937 ).

Oral contract for purchase of real estate on installment basis came within statute of frauds. Brown v. Thomas, 306 Ky. 706 , 208 S.W.2d 723, 1948 Ky. LEXIS 604 ( Ky. 1948 ).

Where real estate was sold at judicial sale for more than appraised value, there was no right of redemption, and alleged oral redemption agreement came within statute of frauds. Brown v. Thomas, 306 Ky. 706 , 208 S.W.2d 723, 1948 Ky. LEXIS 604 ( Ky. 1948 ).

An oral agreement that purchaser was buying real estate for another and would convey it to him when purchase price was paid was within the statute of frauds and unenforceable. Rhorer v. Rhorer's Ex'r, 272 S.W.2d 801, 1954 Ky. LEXIS 1128 ( Ky. 1954 ).

48. — Interference with Contractual Relationship.

Real estate brokerage firm and motel owner had a continuing business relationship which would have resulted in the payment of a commission to the firm upon sale of the motel to the buyer had it not been for the buyer’s representations to the owner that it had not been contacted by the firm. Therefore, even if the seller’s verbal contract to pay a commission was unenforceable, the statute of frauds was not a bar to an action by the brokerage firm against buyer for intentional interference with prospective contractual relationship. Musselman Bros., Inc. v. Dial-Huff & Assoc., Inc., 826 S.W.2d 838, 1992 Ky. App. LEXIS 35 (Ky. Ct. App. 1992).

Directed verdict was proper as to a borrower's tortious interference with contractual relations claim against a bank because the borrower showed no contract's existence, as an alleged oral contract for the sale of real estate was unenforceable. Seeger Enters. v. Town & Country Bank & Trust Co., 518 S.W.3d 791, 2017 Ky. App. LEXIS 66 (Ky. Ct. App. 2017).

49. Lease of Real Estate.

A contract for lease of land for a period of one (1) year to begin at a future date was a contract not to be performed within one year and was within the statute of frauds and not binding unless in writing signed by the party to be charged. (decided under prior law) Greenwood v. Strother, 91 Ky. 482 , 16 S.W. 138, 13 Ky. L. Rptr. 33 , 1891 Ky. LEXIS 77 ( Ky. 1891 ).

A contract for a lease of land for a period of one (1) year to begin at a future date is a contract not to be performed within one (1) year and is within the statute of frauds and not binding unless in writing, signed by the party to be charged. Gault v. Carpenter, 187 Ky. 25 , 218 S.W. 254, 1920 Ky. LEXIS 73 ( Ky. 1920 ); Thomas v. McManus, 64 S.W. 446, 23 Ky. L. Rptr. 837 (1901); Hayden v. Clark, 108 S.W. 845, 32 Ky. L. Rptr. 1341 , 1908 Ky. LEXIS 339 (Ky. Ct. App. 1908); Moore v. Terrell, 111 S.W. 297, 33 Ky. L. Rptr. 822 (1908); Cracraft v. McDaniel, 196 Ky. 128 , 244 S.W. 300, 1922 Ky. LEXIS 465 ( Ky. 1922 ); Sutton v. Staton, 275 Ky. 658 , 122 S.W.2d 509, 1938 Ky. LEXIS 483 ( Ky. 1938 ).

A lease contract for a period of one (1) year, if signed by the lessor and accepted by the vendee, is binding on both parties though not signed by the lessee. Duff v. Duff, 187 Ky. 237 , 218 S.W. 1008, 1920 Ky. LEXIS 110 ( Ky. 1920 ).

The sale of a lease of real estate is within the inhibition of the statute of frauds, unless evidenced by a writing, as provided in this section. Surgener v. Smith, 188 Ky. 218 , 221 S.W. 560, 1920 Ky. LEXIS 259 ( Ky. 1920 ).

A verbal contract for a lease for a period of more than one (1) year is unenforceable and the terms of such contract cannot determine the character of the tenancy of one in possession thereunder. Cracraft v. McDaniel, 196 Ky. 128 , 244 S.W. 300, 1922 Ky. LEXIS 465 ( Ky. 1922 ).

An alleged oral contract to pay agent all royalty above six cents a ton for finding a lessee for coal land for 20 years was an oral contract to sell an interest in the land in consideration for services and was within the statute of frauds. Nisbet v. Dozier, 204 Ky. 204 , 263 S.W. 736, 1924 Ky. LEXIS 423 ( Ky. 1924 ).

Although oral contract for rental of farm for calendar year may have been in violation of statute of frauds, where tenant remained in possession for more than 90 days after the end of the calendar year without objection and the holding over was acquiesced in by owner, his tenancy for the year of holding over became valid under KRS 383.160 . Long's Ex'rs v. Bischoff, 277 Ky. 842 , 127 S.W.2d 851, 1939 Ky. LEXIS 736 ( Ky. 1939 ).

Subsection (6) of this section does not apply to an executed lease. Ma-Beha Co. v. Acme Realty Co., 286 Ky. 382 , 150 S.W.2d 1, 1941 Ky. LEXIS 222 ( Ky. 1941 ).

An oral lease of land for the life of the lessee is barred by subsection (6) of this section, although the lessee might die within one (1) year and the agreement would therefore be capable of being performed within one (1) year under the construction given subsection (7) of this section by the courts. Cannon v. Carr, 292 Ky. 793 , 168 S.W.2d 21, 1943 Ky. LEXIS 740 ( Ky. 1943 ).

50. — Insufficient Writing.

A writing signed by grantor merely proposing to lease premises on terms to be mutually agreed upon does not satisfy this section, for the memorandum must contain provisions setting out the various rights and duties of the parties which are the essence of the contract. McKnight v. Broadway Inv. Co., 147 Ky. 535 , 145 S.W. 377, 1912 Ky. LEXIS 319 ( Ky. 1912 ).

A telegram accepting a verbal offer to sell a lease is not a memorandum signed by the party to be charged so as to take the case out of the statute of frauds. Evans v. Parsons, 210 Ky. 146 , 275 S.W. 383, 1925 Ky. LEXIS 639 ( Ky. 1925 ).

Where two (2) trusts wanted to enforce the lease they contend was made by the two (2) companies and claimed that one (1) of the companies was not fulfilling its contractual obligations, the contract did not comply with the Kentucky Statute of Frauds, KRS 371.010 , because one company never signed the lease;, nor had it erected a cell phone tower, paid rent, or taken any actions that suggested that it accepted the contract through implied affirmation. Hulda Schoening Family Trust v. Powertel/Ky. Inc., 265 F. Supp. 2d 781, 2003 U.S. Dist. LEXIS 6306 (W.D. Ky.), amended, 275 F. Supp. 2d 793, 2003 U.S. Dist. LEXIS 13451 (W.D. Ky. 2003 ).

51. — Sublease.

An entry during the term of a former lessee and by his consent and not that of the landlord did not satisfy this section. Moore v. Terrell, 111 S.W. 297, 33 Ky. L. Rptr. 822 (1908).

There is nothing in the statute of frauds which requires the consent of the lessor to sublease to be in writing. Specht v. Stoker, 314 Ky. 786 , 237 S.W.2d 78, 1951 Ky. LEXIS 754 ( Ky. 1951 ).

52. — Growth of Crops.

A contract simply to raise a crop of tobacco can be performed within a year and is not, therefore, within the statute of frauds. Burden v. Lucas, 44 S.W. 86, 19 Ky. L. Rptr. 1581 (1898).

A verbal contract for land for growth of a crop made at a time when the contract could not be performed within one (1) year is within the statute of frauds. Newton v. Farris, 191 Ky. 71 , 229 S.W. 145, 1921 Ky. LEXIS 285 ( Ky. 1921 ).

Statute of frauds had no application to a landlord-tenant sharecropping agreement, since it was capable of being performed within one (1) year, being simply to raise crops during the growing season, which could not be properly classified as a real estate lease for a period of one (1) year. Leftwich v. Wilson, 270 S.W.2d 952, 1954 Ky. LEXIS 1031 ( Ky. 1954 ).

53. — Assignments.

Assignment of lease required to be in writing must also be in writing. Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818 , 178 S.W. 1084, 1915 Ky. LEXIS 607 ( Ky. 1915 ).

A lease which may be terminated on 30 days’ notice is personalty and an assignment or transfer thereof is not required to be in writing. Dyer v. Owens, 204 Ky. 59 , 263 S.W. 663, 1924 Ky. LEXIS 389 ( Ky. 1924 ).

54. — Modification and Rescission.

An alleged parol agreement modifying a written lease of real estate for a year with right of lessee to retain on same terms for two (2) additional years to a three (3) year lease was within the statute of frauds and part performance would not bring it within the exception of the general rule, nor would it afford a defense by way of estoppel in forcible detainer proceedings. Wilson v. Adath Israel Charitable & Educational Ass'n, 262 Ky. 55 , 89 S.W.2d 318, 1935 Ky. LEXIS 764 ( Ky. 1935 ).

Where the evidence showed that a written lease for two (2) years was modified and later rescinded by oral agreements between parties, notwithstanding some evidence to the contrary, it was deemed sufficiently “clear and convincing” to sustain jury’s finding in favor of such modification and rescission, as the phrase “clear and convincing” does not mean that the oral contract should have been established beyond a reasonable doubt. Glass v. Bryant, 302 Ky. 236 , 194 S.W.2d 390, 1946 Ky. LEXIS 643 ( Ky. 1946 ).

Letter modifying lease must contain all of the essential elements or material parts of the contract in order to satisfy the requirements of the statute of frauds. Gunderson v. Friden, Inc., 372 F.2d 303, 1967 U.S. App. LEXIS 7465 (6th Cir. Ky. 1967 ).

55. — Extensions, Renewals and Holdovers.

A parol agreement to extend a five (5) year lease for another five (5) year period is within the statute of frauds. Cincinnati, N. O. & T. P. R. Co. v. Depot Lunch Room, 190 Ky. 121 , 226 S.W. 387, 1920 Ky. LEXIS 545 ( Ky. 1920 ).

Where a tenant holds over for a 90-day period after the expiration of a year’s lease and pays an increased rental for that period, the contract which arises is not required, by this section, to be in writing. Abraham v. Gheens, 205 Ky. 289 , 265 S.W. 778, 1924 Ky. LEXIS 93 ( Ky. 1924 ).

Where tenant has right to renew at the end of lease and he elects to do so, he holds under the terms of the old lease and not under the renewal notice, so if the old lease was in writing, the statute of frauds does not apply. Khourie Bros. v. Jonakin, 222 Ky. 277 , 300 S.W. 612, 1927 Ky. LEXIS 901 ( Ky. 1927 ).

56. — Rights Where Lease Is in Violation of Statute.

A recovery may be had for the actual use and occupation of land under an oral lease for a term of more than one (1) year, though no action could be brought on the lease. Pepper's Adm'x v. Harper, 47 S.W. 620, 20 Ky. L. Rptr. 837 (1898).

As an oral lease of realty for a period of more than one (1) year is unenforceable, no action for damages for refusing to execute it or reduce it to writing will lie. Hurley v. Woodsides, 54 S.W. 8, 21 Ky. L. Rptr. 1073 , 1899 Ky. LEXIS 505 (Ky. Ct. App. 1899).

A tenant under an unenforceable lease who has made valuable improvements on the leasehold prior to repudiation of the lease by the lessor has a right to a recovery based on quantum meruit. Thomas v. McManus, 64 S.W. 446, 23 Ky. L. Rptr. 837 (1901); Poole v. Johnson, 101 S.W. 955, 31 Ky. L. Rptr. 168 (1907).

Removable improvements placed on land by lessee do not constitute sufficient part performance to take the case out of this section. Wessells vs Rodifer, 97 S.W. 341, 30 Ky. L. Rptr. 51 , 1906 Ky. LEXIS 345 (Ky. Ct. App. 1906).

Where alleged lessor under a lease in violation of the statute of frauds received no benefit, the alleged lessee could not recover for expenses and losses on the faith of the lease. Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ).

Possession of premises under terms of an oral lease for a period of three (3) years cannot be relied on to defeat the recovery of the premises or the reasonable rental therefor by the owner. Pullum v. Rhea, 198 Ky. 294 , 248 S.W. 858, 1923 Ky. LEXIS 437 ( Ky. 1923 ).

57. Month-to-Month Lease.

The statute of frauds does not preclude the collection of rental arrearage resulting from a series of month-to-month tenancies because a lease whose term never exceeds 31 days can be performed in less than a year and the fact that a series of month-to-month leases extended over several years is irrelevant since the underlying lease never exceeded one (1) year. Carter v. Schick, 817 S.W.2d 238, 1991 Ky. App. LEXIS 117 (Ky. Ct. App. 1991).

58. Agreements Not to Be Performed Within One (1) Year.
59. — Application.

A contract that had been fully performed upon one side and the other party, by its terms, had a longer time than one (1) year to perform was no longer executory and it was not within the statute of frauds. (decided under prior law) Dant v. Head, 90 Ky. 255 , 13 S.W. 1073, 12 Ky. L. Rptr. 153 , 1890 Ky. LEXIS 80 ( Ky. 1890 ).

Subsection (7) of this section does not apply to a contract fully executed by one party within one (1) year but only to contracts where neither side will be performed within one (1) year. Botkin v. Middlesborough Town & Land Co., 139 Ky. 677 , 66 S.W. 747, 23 Ky. L. Rptr. 1964 , 1890 Ky. LEXIS 35 ( Ky. 1890 ).

If a contract may be performed within one (1) year from its making, this section does not apply, although the performance of the contract may have extended over a greater period of time. Ford Lumber & Mfg. Co. v. Cobb, 138 Ky. 174 , 127 S.W. 763, 1910 Ky. LEXIS 56 ( Ky. 1910 ); Allen v. Wigginton, 309 Ky. 279 , 217 S.W.2d 632, 1949 Ky. LEXIS 687 ( Ky. 1949 ).

In determining whether or not a contract is within subsection (7) of this section, the question is not whether the contract was performed within a year but whether it could be performed within a year. Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431 , 157 S.W. 1121, 1913 Ky. LEXIS 125 ( Ky. 1913 ); Dennis v. Watson, 264 S.W.2d 858, 1953 Ky. LEXIS 1271 (Ky. Ct. App. 1953).

Subsection (7) of this section does not apply to a contract which is capable of being performed within a year and is so performed by one of the parties thereto. East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762 , 162 S.W. 530, 1914 Ky. LEXIS 210 ( Ky. 1914 ); West v. King, 163 Ky. 561 , 174 S.W. 11, 1915 Ky. LEXIS 270 ( Ky. 1915 ); Fergerson v. Rieke, 223 Ky. 321 , 2 S.W.2d 405, 1927 Ky. LEXIS 958 ( Ky. 1927 ); Markwell v. Kahlkoff, 258 Ky. 231 , 79 S.W.2d 984, 1935 Ky. LEXIS 151 ( Ky. 1935 ); Finch's Ex'r v. Hopewell, 285 Ky. 495 , 148 S.W.2d 345, 1941 Ky. LEXIS 414 ( Ky. 1941 ).

Where it is apparent that parties intended the contract to extend for more than one (1) year, it is within this section though no time is fixed for performance. East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762 , 162 S.W. 530, 1914 Ky. LEXIS 210 ( Ky. 1914 ); Cumberland & M. R. Co. v. Posey, 196 Ky. 379 , 244 S.W. 770, 1922 Ky. LEXIS 514 ( Ky. 1922 ); Kentucky Utilities Co. v. Hurst, 207 Ky. 448 , 269 S.W. 525, 1925 Ky. LEXIS 110 ( Ky. 1925 ).

Subsection (7) of this section applies to contracts which, by their terms, are not to be performed within a year and which, from their stipulations, are not capable of being performed within a year. Nickell v. Johnson, 162 Ky. 520 , 172 S.W. 938, 1915 Ky. LEXIS 100 ( Ky. 1915 ).

A contract which allows the parties two (2) years in which to perform, but performance of which is easily possible within a year, is not within this section. Morton v. Roll, 201 Ky. 27 , 255 S.W. 817, 1923 Ky. LEXIS 207 ( Ky. 1923 ).

The general rule is that if a contract may be performed within a year from the making of it, the statute of frauds does not apply, although the actual period of performance may have extended over a greater period of time. But there is a well-recognized exception to this rule which is that when it was contemplated by the parties that the contract would not and could not be performed within the year, even though it was possible of performance within that time, it comes within this section. Livery v. Elkhorn Coal Co., 101 F. Supp. 1014, 1952 U.S. Dist. LEXIS 2018 (D. Ky. 1952 ), aff'd, 206 F.2d 396, 1953 U.S. App. LEXIS 3987 (6th Cir. Ky. 1953 ); Williamson v. Stafford, 301 Ky. 59 , 190 S.W.2d 859, 1945 Ky. LEXIS 690 ( Ky. 1945 ).

The enforceability of a contract under the one (1) year provision of the statute does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

If a contract may be performed within one (1) year from the making thereof, the statute of frauds does not apply. Audiovox Corp. v. Moody, 737 S.W.2d 468, 1987 Ky. App. LEXIS 573 (Ky. Ct. App. 1987).

Where bank claimed that borrower’s action was based on an oral promise by the bank to finance future projects and to renew the restructured note after three (3) years to be paid over a period of 15 years, and since that agreement could not have been performed within one (1) year, any action on that oral agreement was barred by this section; the rule in this state is that statutes do not abrogate the common law remedy for fraud merely because the fraudulent misrepresentation is not in writing. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

Trial court properly granted an employer’s motion for a judgment notwithstanding the verdict on a paralegal’s claim seeking to recover a bonus where the undisputed testimony, a draft agreement of the parties’ conversation regarding the bonus, coupled with the tape recording of that conversation, all confirmed that the parties agreed the bonus would be paid in monthly installments over 107 months, and there were no facts showing that the paralegal fully performed her obligations pursuant to the contract or that the employer should have been estopped from relying on the statute of frauds. Sawyer v. Mills, 2007 Ky. App. LEXIS 92 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 1184 (Ky. Ct. App. Mar. 30, 2007), aff'd, 295 S.W.3d 79, 2009 Ky. LEXIS 195 ( Ky. 2009 ).

When students signed a student enrollment agreement, they contemplated an obligation that could not be performed within a year; therefore, the Statute of Frauds applied, and the agreement was required to be in writing and signed, which then triggered the applicability of Ky. Rev. Stat. Ann. § 446.060 . Dixon v. Daymar Colls. Grp., LLC, 483 S.W.3d 332, 2015 Ky. LEXIS 73 ( Ky. 2015 ).

60. — Contracts Not Within Section.

A suit to recover money advanced to a decedent is not a suit to enforce a contract not to be performed within a year, since the liability to repay the money accrued at the time it was furnished. McNamara v. Madden, 39 S.W. 697, 19 Ky. L. Rptr. 229 (1897).

An oral contract made in the fall of 1888 renting land to be cultivated in tobacco and agreeing to furnish barn room or pay damages for failure to furnish barn room under which lessee took possession in March 1889 was not within the inhibition of the statute of frauds as the term of rental did not necessarily extend for over a year. Burden v. Lucas, 44 S.W. 86, 19 Ky. L. Rptr. 1581 (1898).

A contract that has been fully performed upon one side and the other party, by its terms, has a longer time than one (1) year to perform is no longer executory and subsection (7) of this section has no application. East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762 , 162 S.W. 530, 1914 Ky. LEXIS 210 ( Ky. 1914 ); West v. King, 163 Ky. 561 , 174 S.W. 11, 1915 Ky. LEXIS 270 ( Ky. 1915 ); Maloney v. Maloney, 258 Ky. 567 , 80 S.W.2d 611, 1935 Ky. LEXIS 214 ( Ky. 1935 ), overruled, Finn v. Finn's Adm'r, 244 S.W.2d 435, 1951 Ky. LEXIS 1209 ( Ky. 1951 ); Pilcher v. Stadler, 276 Ky. 450 , 124 S.W.2d 475, 1939 Ky. LEXIS 530 ( Ky. 1939 ).

A contract to furnish money within six months and allow five (5) years to repay the same is not within subsection (7) of this section. Bellew v. Gregory, 174 Ky. 418 , 192 S.W. 492, 1917 Ky. LEXIS 196 ( Ky. 1917 ).

A contract between three (3) stockholders of a corporation and their brother that he should dispose of the business he was then conducting and become a part of the organization of the company by paying a sum equal to one third of the net value of the assets of the company for one fourth of the stock was not within the statute of frauds as it was not impossible to perform within one (1) year. Jefferson Woodworking Co. v. Mercke, 222 Ky. 476 , 1 S.W.2d 532, 1927 Ky. LEXIS 944 ( Ky. 1927 ).

Where payment of note could have been enforced at end of six months, the contract could have been performed within a year and the statute does not lie as a bar. Finch's Ex'r v. Hopewell, 285 Ky. 495 , 148 S.W.2d 345, 1941 Ky. LEXIS 414 ( Ky. 1941 ).

The plaintiff’s oral agreement insofar as it undertook to bind the defendant to pay the plaintiff a commission on sales of cameras and to bind the defendant to grant plaintiff an exclusive franchise unlimited as to territory and to receive payment for film sold for use by all cameras whether sold by plaintiff or not was unenforceable under the one-year provision of the statute of frauds. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

61. — — Contingent.

A contract not to engage in a particular business in a specified location is not within subsection (7) of this section, since death may fulfill it or effect its performance within a year. Dickey v. Dickinson, 105 Ky. 748 , 49 S.W. 761, 20 Ky. L. Rptr. 1559 , 1899 Ky. LEXIS 266 ( Ky. 1899 ); Nickell v. Johnson, 162 Ky. 520 , 172 S.W. 938, 1915 Ky. LEXIS 100 ( Ky. 1915 ).

Although contingency may not in fact happen until after the expiration of a year and although the parties may not have expected that it would occur within that period, it is sufficient if the possibility of performance within the year existed and the contract is not within the statute of frauds. Ford Lumber & Mfg. Co. v. Cobb, 138 Ky. 174 , 127 S.W. 763, 1910 Ky. LEXIS 56 ( Ky. 1910 ); Myers v. Saltry, 163 Ky. 481 , 173 S.W. 1138, 1915 Ky. LEXIS 249 ( Ky. 1915 ).

If the performance of an oral contract depends upon a contingency which may or may not happen within a year, then it is not within this section. East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762 , 162 S.W. 530, 1914 Ky. LEXIS 210 ( Ky. 1914 ); Finley v. Ford, 304 Ky. 136 , 200 S.W.2d 138, 1947 Ky. LEXIS 598 ( Ky. 1947 ).

A contract to maintain an infant until he attains majority is not within this section, as it may be performed within a year by the child’s death. Myers v. Saltry, 163 Ky. 481 , 173 S.W. 1138, 1915 Ky. LEXIS 249 ( Ky. 1915 ).

Subsection (7) of this section was not applicable to an oral agreement between a stockholder and the corporation that at any time the stockholder ceased to become an employe the corporation would repurchase “any” stock bought by him, since performance within one (1) year was not only possible but, at the time it was made, it must have been within the contemplation of the parties that in all probability it would be performed within the year. Pilcher v. Stadler, 276 Ky. 450 , 124 S.W.2d 475, 1939 Ky. LEXIS 530 ( Ky. 1939 ).

The oral contract was not within the statute of frauds where well within one (1) year from the assumed contract, the contingency which would have triggered its performance occurred. Audiovox Corp. v. Moody, 737 S.W.2d 468, 1987 Ky. App. LEXIS 573 (Ky. Ct. App. 1987).

62. — — Terminable at Will.

A contract whereby defendant was to have exclusive sales territory so long as he handled plaintiff’s goods was terminable at will by either party and was a contract which could be performed within a year. M. Livingston & Co. v. Congoleum-Nairn, Inc., 244 Ky. 533 , 51 S.W.2d 678, 1932 Ky. LEXIS 471 ( Ky. 1932 ).

A contract terminable at the will of either party may be performed by termination within one (1) year and is not required by this section to be in writing. Black Mountain Corp. v. Turner, 262 Ky. 733 , 91 S.W.2d 10, 1936 Ky. LEXIS 85 ( Ky. 1936 ).

A contract, if terminable at the will of either party and which may be performed by termination within one (1) year, is not within this section. Finley v. Ford, 304 Ky. 136 , 200 S.W.2d 138, 1947 Ky. LEXIS 598 ( Ky. 1947 ).

A contract terminable at the will of either party and which may be performed by termination within one (1) year does not come within the statute of frauds. Allen v. Wigginton, 309 Ky. 279 , 217 S.W.2d 632, 1949 Ky. LEXIS 687 ( Ky. 1949 ); Mahan v. Kenneth B. S. Robertson, Ltd., 133 F. Supp. 180, 1955 U.S. Dist. LEXIS 2863 (D. Ky. 1955 ).

63. — — For Life.

A contract whereby widow releases dower in land in exchange for promise to support her for life is not within this section, since widow might die within a year. Whitley v. Whitley's Adm'r, 80 S.W. 825, 26 Ky. L. Rptr. 134 (1904).

A contract to give plaintiff a home during defendant’s life is not within this section, as defendant may die within a year and, if contract may be performed within a year, this section does not apply. McDaniel v. Hutcherson, 136 Ky. 412 , 124 S.W. 384, 1910 Ky. LEXIS 499 ( Ky. 1910 ), overruled, Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ).

An oral contract to perform services so long as testatrix should live is not within subsection (7) of this section. Lee v. McCrocklin's Adm'r, 247 Ky. 44 , 56 S.W.2d 570, 1933 Ky. LEXIS 344 ( Ky. 1933 ).

Contracts to keep and care for a person for life are not within this section. Bootes v. Gwinner's Adm'r, 251 Ky. 322 , 64 S.W.2d 904, 1933 Ky. LEXIS 855 ( Ky. 1933 ).

64. — — So Long as Remains in Business.

A contract to employ the plaintiff so long as defendant engaged in the business of operating a sawmill was performable within one (1) year. Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455 , 50 S.W. 685, 20 Ky. L. Rptr. 2006 , 1899 Ky. LEXIS 56 ( Ky. 1899 ).

A contract to furnish plaintiff with oil for a five (5) year period or so long as he stays in business, at a particular rate, is not within this section. Standard Oil Co. v. Denton, 70 S.W. 282, 24 Ky. L. Rptr. 906 (1902).

A contract which provides that it shall remain in force so long as one of the parties thereto should remain in business may be performed within a year and therefore is not within this section. Frankfort & C. R. Co. v. Jackson, 153 Ky. 534 , 156 S.W. 103, 1913 Ky. LEXIS 875 ( Ky. 1913 ).

An agreement not to sell shoes in a particular locality so long as defendant bought such shoes could be terminated by either party at any time, and was not within subsection (7) of this section. Johnson v. International Shoe Co., 228 Ky. 450 , 15 S.W.2d 270, 1929 Ky. LEXIS 565 ( Ky. 1929 ).

65. — — To Devise Property.

An agreement to pay daughters a sum out of father’s estate is not one which could not be performed in one (1) year from the making thereof. Fain v. Turner's Adm'r, 96 Ky. 634 , 29 S.W. 628, 16 Ky. L. Rptr. 719 , 1895 Ky. LEXIS 135 ( Ky. 1895 ).

A contract to devise property in exchange for services is performable within a year. Thomas v. Feese, 51 S.W. 150, 21 Ky. L. Rptr. 206 (1899).

A contract to provide for one in a will is based on a contingency which may or may not happen within a year and is not within the statute of frauds. Story v. Story, 61 S.W. 279, 22 Ky. L. Rptr. 1731 , 1901 Ky. LEXIS 671 (Ky. Ct. App. 1901).

An oral contract by a putative father to make illegitimate child an heir is not within subsection (7) of this section, as the contract may be fulfilled within a year from the time it is made. Conley's Admr v. Hall, 261 Ky. 1 , 86 S.W.2d 1015, 1935 Ky. LEXIS 580 ( Ky. 1 935).

66. — — Gas, Coal, Oil and Timber.

Where timber purchased might all have been removed within a year, the agreement was not within subsection (7) of this section. Niagara Fire Ins. Co. v. Layne, 162 Ky. 665 , 172 S.W. 1090, 1915 Ky. LEXIS 143 ( Ky. 1915 ).

A contract to float logs, being one which, by reason of high tides, might have been performed within a year, is not within this section. Fearon Lumber & Veneer Co. v. Lawson's Adm'r, 189 Ky. 314 , 224 S.W. 882, 1920 Ky. LEXIS 423 ( Ky. 1920 ).

An oral agreement between life tenant and two (2) remaindermen to divide oil royalties equally between them was not within subsection (7) of this section, since it might have been completed within one (1) year by the exhaustion of the oil. Meredith v. Meredith, 204 Ky. 608 , 264 S.W. 1109, 1924 Ky. LEXIS 518 ( Ky. 1924 ).

Parol contract, by which defendant was to furnish gas for an indefinite time from his own well to plaintiff, was not within the statute of frauds, since (1) the contract was completely executed and the well exhausted, and (2) the contract could have been completely performed, by the death of a party or the exhaustion of the well, within a year. Stone v. Smith, 279 Ky. 213 , 130 S.W.2d 18, 1939 Ky. LEXIS 245 ( Ky. 1939 ).

Where the plaintiff and defendant entered into a contract for the exploration and acquisition of coal fields, which contract could have been performed within one (1) year, it was not within the statute of frauds. 20th Century Coal Co. v. Taylor, 275 S.W.2d 72, 1954 Ky. LEXIS 1246 ( Ky. 1954 ).

67. — — Employment.

An oral contract to give employment so long as employee faithfully performs his duties is not within subsection (7) of this section. Louisville & N. R. Co. v. Offutt, 99 Ky. 427 , 36 S.W. 181, 18 Ky. L. Rptr. 303 , 1896 Ky. LEXIS 106 ( Ky. 1896 ).

A contract whereby plaintiff is to work for defendant for weekly payments and to receive a bonus when he has learned the trade is possible of performance within a year. Myers v. Korb, 50 S.W. 1108, 21 Ky. L. Rptr. 163 (1899).

A contract of employment for a one-year period to begin on the day the contract is made is not within subsection (7) of this section. Ross v. Columbus Mining Co., 204 Ky. 474 , 264 S.W. 1071, 1924 Ky. LEXIS 491 ( Ky. 1924 ).

Oral contract to employ for a term of one (1) year was not within subsection (7) of this section where employe began work on the day after the agreement was made. Torson Const. Co. v. Grant, 251 Ky. 800 , 66 S.W.2d 79, 1933 Ky. LEXIS 969 ( Ky. 1933 ).

The general rule is that contracts for employment or other performance that is to begin within a year and is to continue for an indefinite, unspecified period are terminable by either party at any time and are held not to be within the one-year clause of the statute. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

The statute of frauds is not a bar to a fraud or promissory estoppel claim based on an oral promise of indefinite employment. UPS v. Rickert, 996 S.W.2d 464, 1999 Ky. LEXIS 58 ( Ky. 1999 ).

68. — Contracts Within Section.

An agreement by an agent of an insurance company to reinsure until instructed otherwise is a contract not to be performed within a year and no action lies against the company for the agent’s failure to reinsure. Klein v. Liverpool & London & Globe Ins. Co., 57 S.W. 250, 22 Ky. L. Rptr. 301 , 1900 Ky. LEXIS 628 (Ky. Ct. App. 1900).

A parol contract extending the time of payment of a note for five (5) years is within subsection (7) of this section. Morgan v. Wickliffe, 110 Ky. 215 , 61 S.W. 13, 22 Ky. L. Rptr. 1648 , 1901 Ky. LEXIS 66 ( Ky. 1901 ).

An agreement giving debtor two (2) years in which to pay is within this section. Mills v. O'Daniel, 62 S.W. 1123, 23 Ky. L. Rptr. 73 , 1901 Ky. LEXIS 465 (Ky. Ct. App. 1901).

A parol agreement to repay a loan at the expiration of two (2) years is within this section, but the lender may recover on an implied contract. Weber v. Weber, 76 S.W. 507, 25 Ky. L. Rptr. 908 (1903).

An oral contract between two (2) telephone companies that each should build a line to a point midway between two towns and there to connect, the connection to be made within one (1) year from the date of the agreement, and that each should then have the use of the other’s line for 20 years, is indivisible and could not be performed within one (1) year, and therefore such contract is within statute of frauds. Bastin Tel. Co. v. Richmond Tel. Co., 117 Ky. 122 , 77 S.W. 702, 25 Ky. L. Rptr. 1249 , 1903 Ky. LEXIS 287 ( Ky. 1903 ).

A contract giving one party thereto an exclusive right to sell certain product for a period of ten (10) years is within subsection (7) of this section and unenforceable. Gregory v. Harlan Home Coal Co., 182 Ky. 524 , 206 S.W. 765, 1918 Ky. LEXIS 389 ( Ky. 1918 ).

A verbal lease for a five (5) year term is within subsection (7) of this section. Cincinnati, N. O. & T. P. R. Co. v. Depot Lunch Room, 190 Ky. 121 , 226 S.W. 387, 1920 Ky. LEXIS 545 ( Ky. 1920 ).

An oral agreement by one running for sheriff to appoint one, aiding him in his election, deputy for his term of office is within this section. Mullikin v. Miles, 204 Ky. 541 , 264 S.W. 1086, 1924 Ky. LEXIS 502 ( Ky. 1924 ); Purcell v. Campbell, 261 Ky. 644 , 88 S.W.2d 670, 1935 Ky. LEXIS 711 ( Ky. 1935 ).

A verbal contract for personal services to extend over a ten (10) year period is within this section and unenforceable. Dysart v. Dawkins Log & Mill Co., 222 Ky. 415 , 300 S.W. 906, 1927 Ky. LEXIS 936 ( Ky. 1927 ).

Where there was a written lease contract for one (1) year with obligation on lessee to repair with option to retain property for two (2) additional years, alleged parol agreement that lease should run for three (3) years and that cost of repairs should be deducted from rent is within this section. Wilson v. Adath Israel Charitable & Educational Ass'n, 262 Ky. 55 , 89 S.W.2d 318, 1935 Ky. LEXIS 764 ( Ky. 1935 ).

Where parol logging contract could not have been performed in one (1) year with men and equipment contemplated to be used, the contract was not enforceable. King v. McMillan, 293 Ky. 399 , 169 S.W.2d 10, 1943 Ky. LEXIS 623 ( Ky. 1943 ).

An oral contract to set aside $1,000, in lieu of stock which was to have been issued, to be paid at such time as the business ceased or at the expiration of the first five (5) years of a lease, whichever event first occurred, provided plaintiff was still employed by defendant, was within the statute of frauds and unenforceable as an agreement not to be performed within one (1) year. Strauch v. Reynolds, 301 Ky. 628 , 192 S.W.2d 816, 1946 Ky. LEXIS 538 ( Ky. 1946 ).

Oral agreement for purchase of property, which called for monthly payments over a period of at least 13 months, was a contract not to be performed within one (1) year, and therefore it came within statute of frauds. Brown v. Thomas, 306 Ky. 706 , 208 S.W.2d 723, 1948 Ky. LEXIS 604 ( Ky. 1948 ).

An oral joint enterprise agreement which parties contemplated could not and would not be performed within one (1) year was within statute of frauds. Tecon Corp. v. Ralph E. Mills & Gorman, Inc., 186 F. Supp. 891, 1960 U.S. Dist. LEXIS 4073 (E.D. Ky. 1960 ).

If the testimony of the party seeking to enforce the contract is that it was factually impossible to perform his agreement within a year, then such contract must fall squarely within the statute. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

Where the testimony of the plaintiff concerning the exclusive right-to-sell feature and the unlimited territory in which this exclusive franchise would exist was squarely that performance by him to secure such a comprehensive relationship by establishing a distributor in each major population area was factually impossible to be performed within a year, the plaintiff admitted his contract into the operation of the statute. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

Where an attorney’s employee encouraged him to pursue a class action lawsuit against a drug manufacturer and solicited clients on his behalf, where the attorney allegedly agreed to pay the employee more than a million dollars over a 10-year period if the suit was successful, where the attorney, after settling the case and receiving a substantial fee, failed to live up to his alleged promise, and where the employee filed a breach of contract suit and received a verdict in her favor, the trial court did not err in entering a judgment notwithstanding the verdict in favor of the attorney because the alleged contract was unenforceable under the statute of frauds in that the contract was not to be performed within one year and the attorney did not sign a writing consistent with the alleged oral agreement. Sawyer v. Mills, 295 S.W.3d 79, 2009 Ky. LEXIS 195 ( Ky. 2009 ).

69. — — One-year Contracts to Commence in Future.

A parol leasehold agreement to begin in the future and continue from year to year as long as lessee desires is within this section. Wessells vs Rodifer, 97 S.W. 341, 30 Ky. L. Rptr. 51 , 1906 Ky. LEXIS 345 (Ky. Ct. App. 1906).

A contract for lease of land for a one-year term to begin at a future date is within subsection (7) of this section and, if not in writing, it is unenforceable. Gault v. Carpenter, 187 Ky. 25 , 218 S.W. 254, 1920 Ky. LEXIS 73 ( Ky. 1920 ); Thomas v. McManus, 64 S.W. 446, 23 Ky. L. Rptr. 837 (1901); Moore v. Terrell, 111 S.W. 297, 33 Ky. L. Rptr. 822 (1908); Murrell v. American R. E. Co., 207 Ky. 322 , 269 S.W. 293, 1924 Ky. LEXIS 5 ( Ky. 1924 ).

An oral lease for one (1) year, to commence at a future date, is unenforceable, and is not taken out of statute of frauds on ground that the contract was to raise a crop of tobacco, which could be performed within one (1) year, where petition did not allege anything concerning tobacco, and tenant was to have the use of the house for one (1) year. Sutton v. Staton, 275 Ky. 658 , 122 S.W.2d 509, 1938 Ky. LEXIS 483 ( Ky. 1938 ).

A contract to rent land for a one-year term commencing at a future date was within the statute of frauds and unenforceable. Newsom v. Damron, 302 Ky. 79 , 193 S.W.2d 643, 1946 Ky. LEXIS 594 ( Ky. 1946 ).

70. — — Employment.

A contract to give employment for a period of ten (10) years is within this section and, if oral, it is unenforceable but, where employe in consideration of such promise transferred his business for less than its value, he may recover the difference between the amount paid and the value of the business on an implied promise. Bethel v. Booth & Co., 115 Ky. 145 , 72 S.W. 803, 24 Ky. L. Rptr. 2024 , 1903 Ky. LEXIS 83 (Ky. Ct. App. 1903).

An oral contract of employment for a stated period longer than one (1) year is within this section and unenforceable. Garnes v. Frazier & Foster, 118 S.W. 998 ( Ky. 1909 ); Sumner v. Fuqua, 182 Ky. 266 , 206 S.W. 459, 1918 Ky. LEXIS 350 ( Ky. 1918 ); Randolph v. Castle, 190 Ky. 776 , 228 S.W. 418, 1921 Ky. LEXIS 501 ( Ky. 1921 ).

An oral contract for a year’s employment which was to commence at a future date was within statute of frauds and employe had no action for breach of contract. Tarry v. Vick, 214 Ky. 317 , 283 S.W. 87, 1926 Ky. LEXIS 321 ( Ky. 1926 ); Browning v. Clark County Rural Electric Cooperative Corp., 329 S.W.2d 205, 1959 Ky. LEXIS 151 ( Ky. 1959 ).

Where there was direct conflict in evidence as to date oral contract of employment was entered into, the question should have been submitted to the jury. Kimmel v. Foster Freight Lines, Inc., 267 S.W.2d 533, 1954 Ky. LEXIS 842 ( Ky. 1954 ).

71. Compensation for Sale or Lease of Real Estate.

In an action by owners of real estate against broker for damages as result of delay in completing sale under an oral agreement, broker counterclaimed for commission and was awarded $1,500 for services rendered on a quantum meruit basis, although it was not specifically pleaded, but testimony as to the value of the services was introduced and no objection was made. Hale v. Nickell, 359 S.W.2d 819, 1962 Ky. LEXIS 208 ( Ky. 1962 ).

Oral exclusive agency agreement whereby broker was to receive eight per cent from gross sales of subdivision lots was within the statute of frauds. Arnold v. Mitchell, 377 S.W.2d 799, 1964 Ky. LEXIS 500 ( Ky. 1964 ).

In a suit by a real estate agent to recover a commission on the sale of real estate where the agent’s contract with the seller was verbal, a real estate and purchase contract addressed to the real estate agent and accepted by the seller did not satisfy the requirement that there must be a written contract or memorandum signed by the party sought to be bound. Louisville Trust Co. v. Monsky, 444 S.W.2d 120, 1969 Ky. LEXIS 199 ( Ky. 1969 ).

In a suit by a real estate agent to recover a commission on the sale of real estate where the agent’s contract with the seller was verbal, there could be no recovery on quantum meruit. Louisville Trust Co. v. Monsky, 444 S.W.2d 120, 1969 Ky. LEXIS 199 ( Ky. 1969 ).

The plaintiffs had no right to sue on a verbal contract for the commission on the sale of real estate. Louisville Trust Co. v. Monsky, 444 S.W.2d 120, 1969 Ky. LEXIS 199 ( Ky. 1969 ).

72. Agreements to Devise.

A parol contract to devise realty is within the statute of frauds. Gibson v. Crawford, 247 Ky. 228 , 56 S.W.2d 985, 1932 Ky. LEXIS 871 ( Ky. 1932 ); Rudd v. Planters Bank & Trust Co., 283 Ky. 351 , 141 S.W.2d 299, 1940 Ky. LEXIS 335 ( Ky. 1940 ); Vest v. Searce's Adm'r, 312 Ky. 181 , 226 S.W.2d 942, 1950 Ky. LEXIS 617 ( Ky. 1950 ).

An oral agreement by wife to leave property to husband’s next of kin was within the statute of frauds unless it could be shown by clear and convincing proof that she accepted the property under her husband’s will with the understanding and agreement that it would pass to his heirs upon her death and, since this was not established, there was no constructive trust. Driskill v. Driskill's Adm'r, 307 Ky. 627 , 211 S.W.2d 840, 1948 Ky. LEXIS 792 ( Ky. 1948 ).

An action on an oral contract to devise property which includes real estate is barred by the statute of frauds. Bitzer v. Moock's Ex'r & Trustee, 271 S.W.2d 877, 1954 Ky. LEXIS 1053 ( Ky. 1954 ); Rudd v. Planters Bank & Trust Co., 283 Ky. 351 , 141 S.W.2d 299, 1940 Ky. LEXIS 335 ( Ky. 1940 ); Carpenter v. Carpenter, 299 Ky. 738 , 187 S.W.2d 282, 1945 Ky. LEXIS 806 ( Ky. 1945 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ); Cheatham's Ex'r v. Parr, 308 Ky. 175 , 214 S.W.2d 91, 1948 Ky. LEXIS 898 ( Ky. 1948 ).

An oral agreement based upon an adequate consideration to bequeath a share or all of an estate consisting of personalty does not come within statute of frauds but it is to be weighed carefully and must be clear, convincing and positive. Baesler v. R. E. Bell's Ex'x, 299 S.W.2d 605, 1956 Ky. LEXIS 47 ( Ky. 1956 ).

On appeal from dismissal of complaint for specific performance of an express oral agreement to devise real estate, appellants could not contend for the first time that decedent accepted his predeceased wife’s estate subject to a constructive trust to dispose of it at his death in accordance with her directions and, even if a constructive trust had been relied upon in the original trial, the evidence was insufficient to establish one. Weissinger v. Mannini, 311 S.W.2d 199, 1958 Ky. LEXIS 183 ( Ky. 1958 ).

73. — Joint or Mutual Wills.

Mutual wills, executed pursuant to agreement whereby parties reciprocally agree to devise their property to the other, do not constitute sufficient memorandum to satisfy this section. Gibson v. Crawford, 247 Ky. 228 , 56 S.W.2d 985, 1932 Ky. LEXIS 871 ( Ky. 1932 ); Rudd v. Planters Bank & Trust Co., 283 Ky. 351 , 141 S.W.2d 299, 1940 Ky. LEXIS 335 ( Ky. 1940 ).

Joint will of H and W whereby all their property was devised to survivor and, on survivor’s death, to nephews shows clearly an agreement of the parties to make testamentary disposition of their property joint and several in the way and manner provided by the will, and it is immaterial that such agreement is not in writing sufficient to satisfy the statute of frauds where survivor elects to and does accept full benefits accruing to him under the joint will. Price v. Aylor, 258 Ky. 1 , 79 S.W.2d 350, 1935 Ky. LEXIS 107 ( Ky. 1 935).

Oral agreement to execute mutual wills whereby each devises his realty to the other is within the statute of frauds and unenforceable, and the fact that wills are executed pursuant to such agreement does not satisfy this section. Maloney v. Maloney, 258 Ky. 567 , 80 S.W.2d 611, 1935 Ky. LEXIS 214 ( Ky. 1935 ), overruled, Finn v. Finn's Adm'r, 244 S.W.2d 435, 1951 Ky. LEXIS 1209 ( Ky. 1951 ).

74. — For Illegitimate Child.

An oral promise by the father to the unwed mother to provide for an illegitimate child out of his estate in consideration of the mother’s agreement not to institute threatened bastardy proceedings, which agreement had been fully performed on her part, was enforceable. (decided under prior law) Clarke v. McFarland's Ex'rs, 35 Ky. 45 , 1837 Ky. LEXIS 8 ( Ky. 1837 ).

Ordinarily oral agreements to devise real estate are unenforceable, but where the benefit to the intestate, such as party refraining from instituting bastardy proceedings, cannot be measured in money, there is no way of determining the amount of recovery except that fixed by the parties which is the value of the land agreed to be devised. Bowling v. Bowling's Adm'r, 222 Ky. 396 , 300 S.W. 876, 1927 Ky. LEXIS 921 ( Ky. 1927 ).

An oral promise by the father to the unwed mother to provide for an illegitimate child out of his estate in consideration of the mother’s agreement not to institute threatened bastardy proceedings, which agreement was fully performed on her part, is enforceable. Caudill v. Caudill, 257 S.W.2d 557, 1952 Ky. LEXIS 1155 ( Ky. 1952 ); Bowling v. Bowling's Adm'r, 222 Ky. 396 , 300 S.W. 876, 1927 Ky. LEXIS 921 ( Ky. 1927 ); Smith v. Wagers' Adm'rs, 238 Ky. 609 , 38 S.W.2d 685, 1931 Ky. LEXIS 302 ( Ky. 1931 ); Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ), limited, Cheshire v. Barbour, 455 S.W.2d 62, 1970 Ky. LEXIS 245 ( Ky. 1970 ).

An oral promise by father to provide for illegitimate child may be specifically enforced as to real estate where the property is available for transfer. Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ), limited, Cheshire v. Barbour, 455 S.W.2d 62, 1970 Ky. LEXIS 245 ( Ky. 1970 ).

75. — Exchange for Services.

Where uncle agreed to devise land in exchange for services of niece and niece fully performed but uncle did not, niece was entitled to recover the value of the land and other sums agreed to be paid under the contract, since there was no adequate standard to value the consideration which the uncle enjoyed except that which he himself fixed, though the contract was within this section and unenforceable. Waters v. Cline, 121 Ky. 611 , 85 S.W. 209, 27 Ky. L. Rptr. 479 , 1905 Ky. LEXIS 166 ( Ky. 1905 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

Generally, parol contracts whereby a person is to have the property of an elderly couple at their death, conditioned upon his staying with and caring for them, are within the statute of frauds, but recovery may be had where the consideration has been fully performed. The proof to establish such a contract must be clear and convincing, and must disclose a situation where good conscience and natural justice require enforcement of the alleged contract. Where the benefits to the deceased party cannot be measured by ordinary pecuniary standards, the measure of recovery is the value of the property promised. Jordan's Adm'x v. Burton, 281 Ky. 309 , 135 S.W.2d 684, 1939 Ky. LEXIS 34 ( Ky. 1939 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

Promisee under an oral contract to devise realty in exchange for services, even though he performs the services or delivers the consideration, has no cause of action for specific performance and no cause of action of any kind against the heirs at law where the value of services rendered by him are susceptible of estimation, his only action being one against the administrator for the value of services rendered by him. Rudd v. Planters Bank & Trust Co., 283 Ky. 351 , 141 S.W.2d 299, 1940 Ky. LEXIS 335 ( Ky. 1940 ).

It is only where the services performed are of such nature as not to admit of a reduction to monetary value that the oral contract made between the parties may be resorted to in order to fix the value and the measure of recovery is the value of the property agreed to be devised only where the benefit to the intestate cannot be measured in money, and there is no way to determine the amount of recovery except by the pecuniary standard fixed by the parties to the contract. Carpenter v. Carpenter, 299 Ky. 738 , 187 S.W.2d 282, 1945 Ky. LEXIS 806 ( Ky. 1945 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

Where plaintiff took deceased into his home and cared for her up until some time before her death in consideration of her oral promise to devise to him her real and personal property, plaintiff could neither specifically enforce the contract nor recover damages for its breach; his remedy was upon quantum meruit for the value of the services rendered. Cheatham's Ex'r v. Parr, 308 Ky. 175 , 214 S.W.2d 91, 1948 Ky. LEXIS 898 ( Ky. 1948 ).

An oral agreement to devise entire estate consisting of personal property only for a home during remainder of decedent’s life did not come within statute of frauds. Finn v. Finn's Adm'r, 244 S.W.2d 435, 1951 Ky. LEXIS 1209 ( Ky. 1951 ).

Where consideration for oral promise to devise in return for services to be performed was single and was not apportioned, part to the real estate and part to the personalty, either expressly or by implication, the contract was entire and unenforceable as within the statute of frauds even though executor had authority to sell the real estate. Bitzer v. Moock's Ex'r & Trustee, 271 S.W.2d 877, 1954 Ky. LEXIS 1053 ( Ky. 1954 ).

In an action on an oral contract against an estate to recover for services performed in consideration of agreement to devise real estate, which contract was within the statute of frauds and unenforceable, pleading did not disclose an implied contract to pay for the services rendered and plaintiff was not entitled to recover on a quantum meruit basis where there was nothing in the pleading to notify the defendant that the action was being taken on an implied contract but conversely indicated the action was on an express contract. Pryor v. York's Ex'r, 305 S.W.2d 775, 1957 Ky. LEXIS 341 ( Ky. 1957 ).

While an action cannot be maintained upon an oral contract to devise real estate as compensation for services to be rendered because it is within the statute of frauds, yet, if the promisee has performed the contract by rendering the required services, a contract to pay the reasonable value of the services rendered is implied and an action will lie against the personal representative of the decedent on a quantum meruit to recover the reasonable value of the services. Pryor v. York's Ex'r, 305 S.W.2d 775, 1957 Ky. LEXIS 341 ( Ky. 1957 ); Carpenter v. Carpenter, 299 Ky. 738 , 187 S.W.2d 282, 1945 Ky. LEXIS 806 ( Ky. 1945 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ); Vest v. Searce's Adm'r, 312 Ky. 181 , 226 S.W.2d 942, 1950 Ky. LEXIS 617 ( Ky. 1950 ).

76. Agreements Not Within Section.

An agreement whereby husband deeded property purchased and paid for by him to his wife who agreed to apply rents and profits thereof to the support of his family was not within this section. Brooks v. Brooks, 104 S.W. 392, 31 Ky. L. Rptr. 969 (1907).

Where member of lodge orally agreed to purchase property on behalf of lodge and take title to himself as security until the lodge should repay him, the agreement was not within the statute of frauds and the lodge could compel conveyance. Payne v. McClure Lodge, 115 S.W. 764 ( Ky. 1909 ).

A promise of one who has money in his hands belonging to another to pay to a third person the debt of the owner, if the owner consents, is not within this section. Fairbanks, Morse & Co. v. Tafel, 159 Ky. 602 , 167 S.W. 887, 1914 Ky. LEXIS 844 ( Ky. 1914 ).

A lease which may be terminated on 30 days’ notice is personalty and an assignment or transfer thereof is not required to be in writing. Dyer v. Owens, 204 Ky. 59 , 263 S.W. 663, 1924 Ky. LEXIS 389 ( Ky. 1924 ).

A parol agreement by a landowner to allow a neighbor to take and use gas from a well on his premises gave a license and not an interest in land within the statute of frauds. Burgess v. Swetnam, 257 Ky. 64 , 77 S.W.2d 385, 1934 Ky. LEXIS 518 ( Ky. 1934 ).

Oral agreement of partnership which contracted to build sewer to pay insurance premiums charged to subcontractor was not within statute of frauds as promise to answer for debt of another where W.P.A. regulations required that contractors and subcontractors carry compensation insurance. Cole & Moore v. Aetna Casualty & Ins. Co., 280 Ky. 757 , 134 S.W.2d 639, 1939 Ky. LEXIS 211 ( Ky. 1939 ).

Where plaintiff’s claim was that defendant delivered deed pursuant to a contract for the sale of real estate and received purchase price, then later seized deed and destroyed it and returned purchase price, this section did not apply. Vidt v. Burgess, 281 Ky. 664 , 136 S.W.2d 1080, 1940 Ky. LEXIS 90 ( Ky. 1940 ).

Oral agreement by purchaser of land, made at time of purchase, to make good any default in payment of building and loan certificates delivered to vendor as payment for land was not within the statute of frauds. Sparkman v. Triplett, 292 Ky. 569 , 167 S.W.2d 323, 1942 Ky. LEXIS 142 ( Ky. 1942 ).

The general rule is that a parol partnership agreement or a parol agreement for joint adventure for the purpose of dealing in real estate is not in violation of the statute of frauds. Jones v. Nickell, 297 Ky. 81 , 179 S.W.2d 195, 1944 Ky. LEXIS 680 ( Ky. 1944 ).

Contract to receive three percent (3%) commission on the gross rental of a lease between defendant as lessor and third parties was not for the sale of real estate nor for any lease thereof but was nothing more than an employment contract for the payment of money as compensation for services rendered and the statute of frauds did not apply. Henson v. Arnold, 310 Ky. 742 , 221 S.W.2d 662, 1949 Ky. LEXIS 1004 ( Ky. 1949 ).

A contract providing for the exploration by the plaintiff and purchase and acquisition by the defendant of coal fields and for the sharing of profits was a profit-sharing contract and not within the statute of frauds, as one related to the sale or lease of real estate. 20th Century Coal Co. v. Taylor, 275 S.W.2d 72, 1954 Ky. LEXIS 1246 ( Ky. 1954 ).

The statute of frauds was no defense to a writing determined to be a promissory note with a definite agreement to pay amount stated. Payne v. Terry, 367 S.W.2d 277, 1963 Ky. LEXIS 23 ( Ky. 1963 ).

The priority to purchase college basketball tickets was joint property; there was absolutely no evidence that the tickets were any more husband’s than wife’s; it was merely fortuitous that the priority had been put in his name, and thus he had the power to call off the agreement; since his actions precipitated the present proceedings, the court declined to apply the Statute of Frauds to this action. Wagner v. Wagner, 821 S.W.2d 819, 1992 Ky. App. LEXIS 13 (Ky. Ct. App. 1992).

The 1988 Court of Appeals opinion which held that full performance by the suing party took the oral contract between corporation employee and sole shareholder out of the statute of frauds and resolved the factual issues regarding liability in the case established the law of the case and should not have been revisited by the Court of Appeals in 1994. Hogan v. Long, 922 S.W.2d 368, 1995 Ky. LEXIS 139 ( Ky. 1995 ).

77. — Partnerships.

An agreement to become partners and deal in real estate is not as between the parties a contract to buy or sell land and therefore not within this section. Garth v. Davis & Johnson, 120 Ky. 106 , 85 S.W. 692, 27 Ky. L. Rptr. 505 , 1905 Ky. LEXIS 73 ( Ky. 1905 ); Simon v. Gulick, 50 S.W. 992, 21 Ky. L. Rptr. 104 (1899); Goodwin v. Smith, 144 Ky. 41 , 137 S.W. 789, 1911 Ky. LEXIS 545 ( Ky. 1911 ); United Mining Co. v. Morton, 174 Ky. 366 , 192 S.W. 79, 1917 Ky. LEXIS 190 ( Ky. 1917 ).

A partnership for purchase of real estate at an auction may be made by parol and is not within the statute of frauds with reference to sale of land. Mallon v. Buster, 121 Ky. 379 , 89 S.W. 257, 28 Ky. L. Rptr. 318 , 1905 Ky. LEXIS 221 (Ky. Ct. App. 1905), overruled, Ewing v. Clore, 219 Ky. 329 , 292 S.W. 824, 1927 Ky. LEXIS 328 ( Ky. 1927 ).

Agreement between two (2) persons that one of them is to furnish money to buy land and the other is to have a specified interest in it is not within this section. Wiedemann v. Crawford, 142 Ky. 303 , 134 S.W. 495, 1911 Ky. LEXIS 220 ( Ky. 1911 ).

This section does not apply to an oral contract whereby one partner is to purchase realty for the benefit of the partnership. Minor v. Perry, 19 F. Supp. 449, 1937 U.S. Dist. LEXIS 1899 (D. Ky. 1937 ).

78. — Joint Ventures.

It has been fairly established that if two (2) parties agree to purchase land for possible resale at a profit, their purpose is to “deal in” the property and the agreement does not come within this section. Appleby v. Buck, 351 S.W.2d 494, 1961 Ky. LEXIS 165 ( Ky. 1961 ).

An oral agreement to obtain oil and gas leases for development and profit described as a joint venture is not in violation of this section. Eubank v. Richardson, 353 S.W.2d 367, 1962 Ky. LEXIS 12 ( Ky. 1962 ).

79. — Insurance.

Contracts of insurance are not required to be in writing and may be modified by subsequent parol agreements. Fidelity & Casualty Co. v. Ballard & Ballard Co., 105 Ky. 253 , 48 S.W. 1074, 20 Ky. L. Rptr. 1169 , 1899 Ky. LEXIS 197 ( Ky. 1899 ); Mattingly v. Springfield Fire & Marine Ins. Co., 120 Ky. 768 , 83 S.W. 577, 26 Ky. L. Rptr. 1187 , 1904 Ky. LEXIS 274 ( Ky. 1904 ); Springfield Fire & Marine Ins. Co. v. Mattingly, 90 S.W. 577, 28 Ky. L. Rptr. 795 (1906), (decisions prior to KRS 304.1-010 et seq.).

Contracts of insurance are not required to be in writing; hence, they may be modified by subsequent parol agreements. Fidelity & Casualty Co. v. Ballard & Ballard Co., 105 Ky. 253 , 48 S.W. 1074, 20 Ky. L. Rptr. 1169 , 1899 Ky. LEXIS 197 ( Ky. 1899 ); Mattingly v. Springfield Fire & Marine Ins. Co., 120 Ky. 768 , 83 S.W. 577, 26 Ky. L. Rptr. 1187 , 1904 Ky. LEXIS 274 ( Ky. 1904 ); Springfield Fire & Marine Ins. Co. v. Mattingly, 90 S.W. 577, 28 Ky. L. Rptr. 795 (1906) (decisions prior to KRS 304.1-010 et seq.).

An insurance agent may bind his principal by a parol contract of insurance or by a parol agreement to renew an existing policy. Klein v. Liverpool & London & Globe Ins. Co., 57 S.W. 250, 22 Ky. L. Rptr. 301 , 1900 Ky. LEXIS 628 (Ky. Ct. App. 1900) (decision prior to KRS 304.1-010 et seq.).

Contracts of insurance are not required to be in writing. German-American Ins. Co. v. Yellow Poplar Lumber Co., 84 S.W. 551, 27 Ky. L. Rptr. 105 (1905); Springfield Fire & Marine Ins. Co. v. Snowden, 173 Ky. 664 , 191 S.W. 439, 1917 Ky. LEXIS 494 ( Ky. 1917 ) (decision prior to KRS 304.1-010 et seq.).

80. — Payment of Royalties on Mineral Land.

An oral agreement between life tenant and two (2) remaindermen to divide the royalties which would be paid them under a lease previously executed, equally between them, was not a transfer of an interest in realty and not within the statute of frauds. Meredith v. Meredith, 204 Ky. 608 , 264 S.W. 1109, 1924 Ky. LEXIS 518 ( Ky. 1924 ).

An oral agreement to pay a portion of money received as a royalty from mineral lands is not such an interest in land as to bring it within this section. Drury v. Walters, 123 F. Supp. 422, 1954 U.S. Dist. LEXIS 3028 (D. Ky. 1954 ).

81. — Sale by Commissioner Under Court Decree.

A sale of land by a commissioner of court under decree is not within the terms of the statute of frauds and no memorandum need be made of the sale at the time it is made. Kentucky Utilities Co. v. Steenman, 283 Ky. 317 , 141 S.W.2d 265, 1940 Ky. LEXIS 325 ( Ky. 1940 ).

82. — Redemption.

An agreement by the purchaser of land sold for debts of a decedent, with heirs of decedent, who had right to redeem, that if they would abandon their intention to redeem and allow him to take a conveyance under his purchase, he would pay them the value of the interest of one of the heirs is not a contract for the sale of an interest in land within the statute of frauds. Kaler v. Grady, 37 S.W. 955, 18 Ky. L. Rptr. 678 (1896).

A parol contract whereby purchaser at decretal sale agrees with the owner that he may redeem it by payment of a certain sum is not within this section. Farmers' & Shippers' Leaf Tobacco Warehouse Co. v. Purdy, 102 S.W. 303, 31 Ky. L. Rptr. 305 (1907).

83. — Implied Trusts.

Where uncle purchases land of infant heirs at a tax sale and publicly announces that he is buying for the benefit of the infants, he acts fraudulently and a trust arises which takes the case out of the statute of frauds. Vanbever v. Vanbever, 97 Ky. 344 , 30 S.W. 983, 17 Ky. L. Rptr. 242 , 1895 Ky. LEXIS 199 ( Ky. 1895 ).

Parol agreements of implied trusts, whether resultant or constructive, are not within the statute of frauds. Parker v. Catron, 120 Ky. 145 , 85 S.W. 740, 27 Ky. L. Rptr. 536 , 1905 Ky. LEXIS 84 ( Ky. 1905 ); Griffin v. Schlenk, 139 Ky. 523 , 102 S.W. 837, 31 Ky. L. Rptr. 422 , 1907 Ky. LEXIS 3 ( Ky. 1907 ); Best v. Melcon, 183 Ky. 785 , 210 S.W. 662, 1919 Ky. LEXIS 568 ( Ky. 1919 ); Rudd v. Gates, 191 Ky. 456 , 230 S.W. 906, 1921 Ky. LEXIS 3 32 ( Ky. 1921 ); Anglin v. Powell, 235 Ky. 705 , 32 S.W.2d 54, 1930 Ky. LEXIS 451 ( Ky. 1930 ).

An agreement by a husband to hold the proceeds of the sale of wife’s property for her creates an express trust relating to personalty and is not within the statute of frauds. Bohannon v. Bohannon's Adm'x, 92 S.W. 597, 29 Ky. L. Rptr. 143 (1906).

Where one furnishes the consideration to buy land, a parol agreement of the grantee to hold it for the use and in trust for the one furnishing the consideration is valid and not within the statute of frauds. Smith v. Smith, 121 S.W. 1002, 1909 Ky. LEXIS 491 (Ky. Ct. App. 1909).

Where brothers surveyed land in partnership with oral agreement that each should obtain a patent in his own name for his portion thereof and, after one brother’s death, the other took patents in his own name, a trust results in favor of the privies of the deceased brother. Gibson v. Bartley, 123 S.W. 324, 1909 Ky. LEXIS 514 ( Ky. 1909 ).

An agreement by a purchaser of a decedent’s land to take title in the name of his mother for the benefit of her grandchildren is not within the statute of frauds, but purchaser is regarded as trustee. Davis v. Spicer, 128 S.W. 294, 1910 Ky. LEXIS 640 (Ky. Ct. App. 1910).

A constructive trust arises where land sold at a decretal sale is purchased by another for the benefit of the former owner and is not within this section. McKibben v. Diltz, 138 Ky. 684 , 128 S.W. 1082, 1910 Ky. LEXIS 120 ( Ky. 1910 ); Willis v. Lam, 158 Ky. 777 , 166 S.W. 251, 1914 Ky. LEXIS 712 ( Ky. 1914 ); Chappell v. Hensley, 217 Ky. 749 , 290 S.W. 705, 1927 Ky. LEXIS 74 ( Ky. 1927 ).

A constructive trust arises where H is induced to convey property to W upon W’s promise that at her death she would give it to H’s children. Becker v. Neurath, 149 Ky. 421 , 149 S.W. 857, 1912 Ky. LEXIS 639 ( Ky. 1912 ).

Although parol agreements of implied trusts, whether resultant or constructive, are not within the statute of frauds, an express trust between strangers at law is within the statute of frauds and is unenforceable unless in writing. Fields v. Hoskins, 182 Ky. 446 , 206 S.W. 763, 1918 Ky. LEXIS 388 ( Ky. 1918 ).

Where devisee of property promises testator to dispose of property in a particular way, the agreement will be enforced though oral, since the devisee holds the property in trust for the one to whom he agreed to transfer the property. Shrader's Ex'r v. Shrader, 228 Ky. 374 , 15 S.W.2d 246, 1929 Ky. LEXIS 555 ( Ky. 1929 ).

A parol agreement creating a trust in land does not come within the statute of frauds, but the evidence to establish such a trust must be definite, clear and convincing. Moore v. Terry, 293 Ky. 727 , 170 S.W.2d 29, 1943 Ky. LEXIS 695 ( Ky. 1943 ).

A continuing trust in real estate may be created by a parol agreement made prior to or contemporaneously with the execution of a conveyance, and such trust does not come within the statute of frauds. Weissinger v. Weissinger, 302 S.W.2d 97, 1957 Ky. LEXIS 168 ( Ky. 1957 ).

A trust in land arising out of a parol agreement does not come within this section. Appleby v. Buck, 351 S.W.2d 494, 1961 Ky. LEXIS 165 ( Ky. 1961 ).

Where joint venture to purchase land was established, and one of parties purchased land for his own account, a constructive trust arose notwithstanding joint venture contract was oral and contract was not performable within a year. O'Bryan v. Bickett, 419 S.W.2d 726, 1967 Ky. LEXIS 178 ( Ky. 1967 ).

84. Rights Under Contracts in Violation of Statute.

The fact that one party to an oral contract within the statute of frauds promised the other to reduce the contract to writing does not change the rights of the parties. Hurley v. Woodsides, 54 S.W. 8, 21 Ky. L. Rptr. 1073 , 1899 Ky. LEXIS 505 (Ky. Ct. App. 1899); Garnes v. Frazier & Foster, 118 S.W. 998 ( Ky. 1909 ); Gregory v. Harlan Home Coal Co., 182 Ky. 524 , 206 S.W. 765, 1918 Ky. LEXIS 389 ( Ky. 1918 ).

Unless a benefit results to the defendant, no recovery may be had for expenses incurred by plaintiff in reliance on a contract which is unenforceable by virtue of statute of frauds. Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ).

Oral contracts embraced by this section are not declared void but merely unenforceable. Bellew v. Gregory, 174 Ky. 418 , 192 S.W. 492, 1917 Ky. LEXIS 196 ( Ky. 1917 ); Mullikin v. Miles, 204 Ky. 541 , 264 S.W. 1086, 1924 Ky. LEXIS 502 ( Ky. 1924 ); Gover v. Stovall, 237 Ky. 172 , 35 S.W.2d 24, 1931 Ky. LEXIS 572 ( Ky. 1931 ).

This section does not make an oral contract for any of the purposes set out in the section void, but only voidable and unenforceable. Finley v. Ford, 304 Ky. 136 , 200 S.W.2d 138, 1947 Ky. LEXIS 598 ( Ky. 1947 ).

Where a part of an oral contract is within the statute of frauds for the reason that it may not be performed within one (1) year and a part is not covered by the statute, if the consideration for both parts is not divisible and apportionable, or if such parts are interdependent, neither can be enforced, but if the consideration for both parts is divisible and apportionable and if the parts are independent, then the part not within the statute when fully performed may be enforced at the contract rate. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

85. — Part Performance.

With exception of contracts not to be performed within one (1) year, part performance does not satisfy the statute of frauds. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 204 , 80 S.W. 803, 26 Ky. L. Rptr. 63 , 1904 Ky. LEXIS 29 ( Ky. 1904 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ); Randolph v. Castle, 190 Ky. 776 , 228 S.W. 418, 1921 Ky. LEXIS 501 ( Ky. 1921 ); Smith v. Cloyd, 260 Ky. 393 , 85 S.W.2d 873, 1935 Ky. LEXIS 474 ( Ky. 1935 ); Wilson v. Adath Israel Charitable & Educational Ass'n, 262 Ky. 55 , 89 S.W.2d 318, 1935 Ky. LEXIS 764 ( Ky. 1935 ).

The rule in this state is that, with the exception of contracts not to be performed in a year, part performance will not take the case out of the statute of frauds, though a party may have equitable rights which he may enforce. Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818 , 178 S.W. 1084, 1915 Ky. LEXIS 607 ( Ky. 1915 ); Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ); Maloney v. Maloney, 258 Ky. 567 , 80 S.W.2d 611, 1935 Ky. LEXIS 214 ( Ky. 1935 ), overruled, Finn v. Finn's Adm'r, 244 S.W.2d 435, 1951 Ky. LEXIS 1209 ( Ky. 1951 ); Terry v. Terry, 264 Ky. 625 , 95 S.W.2d 282, 1936 Ky. LEXIS 381 ( Ky. 1936 ).

Where one party has performed his part of an oral contract within this section, he may plead the same in defense of an action by the other party to prevent such party reaping benefits from his own failure to perform. Bellew v. Gregory, 174 Ky. 418 , 192 S.W. 492, 1917 Ky. LEXIS 196 ( Ky. 1917 ).

Part performance of a lease contract not to be performed within one (1) year from the making thereof does not satisfy this section. Gault v. Carpenter, 187 Ky. 25 , 218 S.W. 254, 1920 Ky. LEXIS 73 ( Ky. 1920 ); Cracraft v. McDaniel, 196 Ky. 128 , 244 S.W. 300, 1922 Ky. LEXIS 465 ( Ky. 1922 ).

Oral agreement by lessor to lay new floor, fix leaks and keep building in repair for a period of five (5) years was taken out of this section by part performance where lessee fully performed by furnishing lumber for new floor. Smith v. Cloyd, 260 Ky. 393 , 85 S.W.2d 873, 1935 Ky. LEXIS 474 ( Ky. 1935 ).

Part performance does not take the entire contract out of this section and affects only that part of the contract which has been performed. Mulberry v. Kitchen, 247 S.W.2d 380, 1952 Ky. LEXIS 695 ( Ky. 1952 ).

It is generally held that part performance not amounting to full performance on one side does not in general take a contract out of the one-year provision, but restitution is available in such cases, and doctrines of estoppel and fraud may be applicable. Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 1970 Ky. LEXIS 133 ( Ky. 1970 ).

86. — Action for Money Had and Received.

Party to unenforceable contract is entitled to a return of money paid by him as there was no consideration for it. Kentucky Counties Oil Co. v. Cupler, 204 Ky. 799 , 265 S.W. 334, 1924 Ky. LEXIS 582 ( Ky. 1924 ).

A party to a contract, unenforceable by reason of statute of frauds, who refuses to go on with the contract after having received a part of the consideration, must make restitution thereof. It may be recovered on am implied promise to pay. Glazebrook v. Glazebrook's Ex'r, 227 Ky. 628 , 13 S.W.2d 776, 1929 Ky. LEXIS 930 ( Ky. 1929 ).

A memorandum insufficient to comply with the statute of frauds may be used as evidence to support a recovery for money had and received. Tidwell v. O'Bryan's Adm'r, 297 Ky. 749 , 181 S.W.2d 260, 1944 Ky. LEXIS 806 ( Ky. 1944 ).

87. — Recovery in Quantum Meruit for Benefit Conferred.

One clearing land under verbal two (2) year lease was entitled to recover the value of his services upon repudiation of contract by lessor. Gates v. Davis, 89 S.W. 490, 28 Ky. L. Rptr. 490 (1905).

In an action on quantum meruit, if the value of the services cannot be readily determined, the contract price may be offered in evidence to show the value placed on the services by the parties. Head v. Schwartz' Ex'r, 304 Ky. 798 , 202 S.W.2d 623, 1947 Ky. LEXIS 735 ( Ky. 1947 ).

While an action cannot be maintained upon an oral contract to devise real estate as compensation for services to be rendered, yet if the promisee has performed the contract by rendering the required services, a contract to pay the reasonable value of the services rendered is implied and an action will be against the personal representative of the decedent on a quantum meruit to recover the value of the services. Head v. Schwartz' Ex'r, 304 Ky. 798 , 202 S.W.2d 623, 1947 Ky. LEXIS 735 ( Ky. 1947 ).

88. Trusts of Land.

The section of the statute of frauds which provides that all trusts of land should be manifested in writing, has never been adopted in the Commonwealth of Kentucky. Horn v. Horn, 562 S.W.2d 319, 1978 Ky. App. LEXIS 470 (Ky. Ct. App. 1978).

89. Agents.

A surety is not bound unless the authority given to his agent to sign his name is in writing. Dickson's Adm'r v. Luman, 93 Ky. 614 , 20 S.W. 1038, 14 Ky. L. Rptr. 884 , 1893 Ky. LEXIS 153 ( Ky. 1893 ); Bramel v. Byron, 43 S.W. 695, 19 Ky. L. Rptr. 1440 (1897); Commonwealth v. Roark, 116 Ky. 396 , 76 S.W. 140, 25 Ky. L. Rptr. 603 , 1903 Ky. LEXIS 200 ( Ky. 1903 ); United States Fidelity & Guaranty Co. v. McGinnis' Adm'r, 147 Ky. 781 , 145 S.W. 1112, 1912 Ky. LEXIS 358 ( Ky. 1912 ); Clinton v. Hibb's Ex'x, 202 Ky. 304 , 259 S.W. 356, 1924 Ky. LEXIS 703 ( Ky. 1924 ); Dalton v. Shelton, 267 Ky. 40 , 101 S.W.2d 208, 1937 Ky. LEXIS 281 ( Ky. 1937 ); Schooler v. Yancey, 133 Ky. 695 , 118 S.W. 940, 1909 Ky. LEXIS 218 ( Ky. 1909 ).

An auctioneer is the agent of both parties to a sale, and a memorandum signed by him, if otherwise complete, will bind both parties. Garth v. Davis & Johnson, 120 Ky. 106 , 85 S.W. 692, 27 Ky. L. Rptr. 505 , 1905 Ky. LEXIS 73 ( Ky. 1905 ); Martin v. Mathis, 184 Ky. 20 , 211 S.W. 198, 1919 Ky. LEXIS 15 ( Ky. 1919 ).

Agent signing principal’s name need not indicate that he signs as agent. Whitworth v. Pool, 96 S.W. 880, 29 Ky. L. Rptr. 1104 (1906).

The authority of an agent to bind his principal to a contract within this section need not be in writing. Whitworth v. Pool, 96 S.W. 880, 29 Ky. L. Rptr. 1104 (1906); Godsey v. Standifer, 31 Ky. 44 , 101 S.W. 921, 31 Ky. L. Rptr. 44 , 1907 Ky. LEXIS 358 (Ky. Ct. App. 1907).

Where agent procures purchaser for property pursuant to written authority, he is entitled to commission though contract to purchase was verbal if prospective purchaser is ready, willing and able to perform contract and vendor refuses to do so thereby preventing making of written contract. Pope v. Caddell, 125 Ky. 837 , 102 S.W. 327, 31 Ky. L. Rptr. 412 , 1907 Ky. LEXIS 339 ( Ky. 1907 ).

The authority of an auctioneer, who has full authority to advertise and complete a sale of realty, to bind the vendor does not end with the sale but extends beyond it, and he may bind the vendor by signing a memorandum within a reasonable time after the sale, but he has no authority to bind the vendee unless the memorandum is executed and signed contemporaneously with the sale or immediately thereafter. Martin v. Mathis, 184 Ky. 20 , 211 S.W. 198, 1919 Ky. LEXIS 15 ( Ky. 1919 ).

A contract between owner and agent, who is to sell land, need not be in writing as it is not within this section. Oliver v. Morgan, 198 Ky. 442 , 248 S.W. 1020, 1923 Ky. LEXIS 467 ( Ky. 1923 ).

Auctioneer’s memorandum made contemporaneously with sale binds both parties, but where name of bidder is erased and bidder’s principal is inserted, bidder is released from the contract and auctioneer is without authority to make another memorandum binding him after he has departed from the place of sale. Bell v. Borders, 205 Ky. 181 , 265 S.W. 514, 1924 Ky. LEXIS 73 ( Ky. 1924 ).

The authority of an agent to bind his principal to a contract within this section need not be written. Parke v. Spurlin, 268 S.W.2d 33, 1954 Ky. LEXIS 892 ( Ky. 1954 ).

90. Modification or Rescission.

A contract in writing, required by this statute to be written, could be rescinded by parol agreement. (decided under prior law) Davis v. Benedict, 4 S.W. 339, 9 Ky. L. Rptr. 200 (Ky. Ct. App. 1887).

A parol contract for the sale of land is not binding, and the vendor, after demanding possession from his vendee, may institute an action to rescind the contract and recover possession of the land upon equitable terms. May v. May, 110 S.W. 808, 33 Ky. L. Rptr. 638 (1908).

Where written contract for sale of land was subsequently modified by oral contract, parties were bound under written contract as modified. Sizemore v. Bowling's Adm'r, 115 S.W. 737 ( Ky. 1909 ).

A contract in writing, required by this section to be written, may be rescinded by parol agreement. Keeney v. Waters, 135 Ky. 525 , 122 S.W. 837, 1909 Ky. LEXIS 316 ( Ky. 1909 ); Warden v. Bennett, 145 Ky. 325 , 140 S.W. 538, 1911 Ky. LEXIS 846 ( Ky. 1911 ); United Mining Co. v. Morton, 174 Ky. 366 , 192 S.W. 79, 1917 Ky. LEXIS 190 ( Ky. 1917 ).

Abandonment, dissolution, or rescission of written contract, where rights of third parties have not intervened, may be by parol. McKinney v. Flanery, 205 Ky. 766 , 266 S.W. 629, 1924 Ky. LEXIS 224 ( Ky. 1924 ).

Upon the rescission of an oral contract which is required to be in writing, certain well-defined equities flow and give rise to the right of an accounting by and from both parties. Clay v. Carter, 226 Ky. 453 , 11 S.W.2d 91, 1928 Ky. LEXIS 105 ( Ky. 1928 ).

Where agreement relates only to the time and manner of payment of the consideration, it is not a material alteration of the original contract and is not required to be in writing. Klatch v. Simpson, 237 Ky. 84 , 34 S.W.2d 951, 1931 Ky. LEXIS 546 ( Ky. 1931 ).

An alleged parol agreement which would materially alter a written contract is unenforceable, since within the statute of frauds. Wilson v. Adath Israel Charitable & Educational Ass'n, 262 Ky. 55 , 89 S.W.2d 318, 1935 Ky. LEXIS 764 ( Ky. 1935 ).

An alleged verbal contract undertaking to modify or rescind a written contract that agents must return all unearned commissions on canceled policies was not clear and convincing. National Union Fire Ins. Co. v. Duvall, 268 Ky. 168 , 104 S.W.2d 220, 1937 Ky. LEXIS 431 ( Ky. 1937 ).

Upon rescission of oral lease or conveyance of land, unenforceable because of statute of frauds, lessee or grantee is entitled to reimbursement for improvements and taxes, but not for ordinary repairs and upkeep, and lessor or grantor is entitled to reasonable rent for time of occupancy. Cannon v. Carr, 292 Ky. 793 , 168 S.W.2d 21, 1943 Ky. LEXIS 740 ( Ky. 1943 ).

A contract required by law to be in writing may be modified or rescinded by a subsequent oral agreement. Glass v. Bryant, 302 Ky. 236 , 194 S.W.2d 390, 1946 Ky. LEXIS 643 ( Ky. 1946 ).

A written agreement may be rescinded by parol agreement and reconciliation nullified a written separation agreement. Hall v. Hall, 328 S.W.2d 541, 1959 Ky. LEXIS 129 ( Ky. 1959 ).

Where the noncompetition clause was aimed at the end of the employment, whether it continued under the original contract or under any substitute agreement that did not expressly or by necessary implication abrogate it, such clause in written contract continued in force and the statute of frauds did not bar enforcement of the clause. Louisville Cycle & Supply Co. v. Baach, 535 S.W.2d 230, 1976 Ky. LEXIS 89 ( Ky. 1976 ).

Because the original contract was subject to the requirements of the statute of frauds, any modification of material terms in the contract had to be in writing and signed by the party to be charged therewith. Debtor did not allege that the modification was in writing nor did the record contain any documentation in support of his allegations; thus, he failed to allege facts sufficient to support an enforceable modification of the payment terms of the Loan. In re Ziegler, 2013 Bankr. LEXIS 58 (Bankr. E.D. Ky. Jan. 4, 2013).

91. Reformation.

Where in an action to reform a contract for the sale of real estate, it is alleged that by oversight and mistake the description was omitted, and such oversight and omission are admitted by demurrer, the statute of frauds cannot be invoked. McMee v. Henry, 163 Ky. 729 , 174 S.W. 746, 1915 Ky. LEXIS 316 ( Ky. 1915 ).

A written contract may be reformed and specifically enforced or damages awarded for its breach as reformed, although that part of the agreement which it is claimed was omitted from the contract by fraud or mistake is within this section. Castleman-Blakemore Co. v. Pickrell & Craig Co., 163 Ky. 750 , 174 S.W. 749, 1915 Ky. LEXIS 317 ( Ky. 1915 ).

92. Renewals.

A contract required to be in writing which has expired according to its terms may not be revived by oral agreement. Spicer v. Elmore, 292 Ky. 144 , 166 S.W.2d 276, 1942 Ky. LEXIS 61 ( Ky. 1942 ).

93. Parties to Be Charged.

A surety was not bound unless the authority given to his agent to sign his name was in writing. (decided under prior law) Ragan v. Chenault, 78 Ky. 545 , 1 Ky. L. Rptr. 258 , 1880 Ky. LEXIS 57 ( Ky. 1880 ); Billington v. Commonwealth, 79 Ky. 400 , 3 Ky. L. Rptr. 19 , 1881 Ky. LEXIS 43 (Ky. Ct. App. 1881); Dawson v. Lee, 83 Ky. 49 , 6 Ky. L. Rptr. 413 , 1884 Ky. LEXIS 108 (Ky. Ct. App. 1884); English v. Dycus, 5 S.W. 44, 9 Ky. L. Rptr. 188 (1887); First Nat'l Bank v. Gaines, 87 Ky. 597 , 9 S.W. 396, 10 Ky. L. Rptr. 451 , 1888 Ky. LEXIS 99 ( Ky. 1888 ); Simpson v. Commonwealth, 89 Ky. 412 , 12 S.W. 630, 11 Ky. L. Rptr. 619 , 1889 Ky. LEXIS 139 ( Ky. 1889 ).

Where vendors have fully executed their part of an oral contract, vendees are then parties to be charged. Hoffman v. Colgan, 74 S.W. 724, 25 Ky. L. Rptr. 98 , 1903 Ky. LEXIS 356 (Ky. Ct. App. 1903).

If agreement was required to be in writing under the statute of frauds, the person charged upon such agreement may confess or affirm the contract or agreement, or may raise no objection to its enforcement when the duty to do so arises and thus waive the requirements of this section. Karr's Adm'r v. Harmon, 273 Ky. 394 , 116 S.W.2d 947, 1938 Ky. LEXIS 645 ( Ky. 1938 ).

A computer lease did not violate the statute of frauds where plaintiff-lessor, which was seeking enforcement, did not also sign the agreement, since the “party to be charged”, the lessee, did sign it. Cowden Mfg. Co. v. Systems Equipment Lessors, Inc., 608 S.W.2d 58, 1980 Ky. App. LEXIS 381 (Ky. Ct. App. 1980).

94. Sufficient Writing.

An ordinance and an order of the fiscal court entered on record were sufficient to show contract whereby plaintiffs were entitled to have their private telephone line connected with defendant company’s exchange, and no new writing was necessary to satisfy this section. Cumberland Tel. & Tel. Co. v. Cartwright Creek Tel. Co., 128 Ky. 395 , 108 S.W. 875, 32 Ky. L. Rptr. 1357 , 1908 Ky. LEXIS 75 ( Ky. 1908 ).

A memorandum is sufficient if it relieves the court from the necessity of relying on parol evidence to establish the existence of the contract. Campbell v. Preece, 133 Ky. 572 , 118 S.W. 373, 1909 Ky. LEXIS 210 ( Ky. 1909 ).

Written agreement signed by the party to be charged to carry out oral agreement within the statute of frauds is not sufficient to satisfy the statute of frauds unless it contains the terms of the oral contract. Tracy v. Deshon, 157 Ky. 226 , 162 S.W. 1116, 1914 Ky. LEXIS 261 ( Ky. 1914 ).

A letter and check signed by the authorized agent of the vendor sufficiently identified the property and constituted memorandum complying with the statute of frauds. Purtell v. Bell, 179 Ky. 356 , 200 S.W. 644, 1918 Ky. LEXIS 229 ( Ky. 1918 ).

A telegram was held a sufficient memorandum. Selma Sav. Bank v. Webster County Bank, 182 Ky. 604 , 206 S.W. 870, 1918 Ky. LEXIS 411 ( Ky. 1918 ).

Where memorandum is made subsequent to oral contract of sale, it must be delivered to and accepted by the vendee or signed by him showing his assent thereto. National Bank of Kentucky v. Louisville Trust Co., 67 F.2d 97, 1933 U.S. App. LEXIS 4369 (6th Cir. Ky. 1933 ), cert. denied, 291 U.S. 665, 54 S. Ct. 440, 78 L. Ed. 1056, 1934 U.S. LEXIS 607 (U.S. 1934).

There is no necessity that the making of the note or written memorandum be contemporaneous with the making of the parol agreement but, if it is not contemporaneous, there must be evidence of a continuance of the defendant’s acquiescence in it and some act upon his part evidencing continued assent. Louisville Trust Co. v. National Bank of Kentucky, 102 F.2d 137, 1939 U.S. App. LEXIS 4804 (6th Cir. Ky.), cert. denied, 308 U.S. 564, 60 S. Ct. 76, 84 L. Ed. 474, 1939 U.S. LEXIS 345 (U.S. 1939).

A minute of a resolution appointing a superintendent of schools was a sufficient memorandum to entitle superintendent to recover his salary. Smith v. Board of Education, 23 F. Supp. 328, 1938 U.S. Dist. LEXIS 2170 (D. Ky. 1938 ).

In action for discharge of employment without cause, correspondence between the parties was sufficient to take the case out of the statute of frauds. Hamilton Carhartt Overall Co. v. Short, 303 Ky. 423 , 197 S.W.2d 792, 1946 Ky. LEXIS 859 ( Ky. 1946 ).

Whether memorandum of the contract was sufficient to take the case out of the statute of frauds was question for court. Elizabethtown Lincoln-Mercury, Inc. v. Tucker, 240 S.W.2d 847, 1951 Ky. LEXIS 1027 ( Ky. 1951 ).

A written instrument which sets forth the undertaking of the persons executing it or discloses terms from which such an undertaking can be imported, and which shows the consideration for the undertaking, and which identifies the parties thereto, will be considered a contract in writing and comes within KRS 413.090 . Mills v. McGaffee, 254 S.W.2d 716, 1953 Ky. LEXIS 608 ( Ky. 1953 ).

A memorandum signed by the party to be charged is sufficient if it relieves court of the necessity of relying on parol evidence to establish existence of contract. Koplin v. Faulkner, 293 S.W.2d 467, 1956 Ky. LEXIS 68 ( Ky. 1956 ).

The terms of a contract must be complete and sufficiently definite to enable the court to determine the measure of damages in the event of a breach. Mitts & Pettit, Inc. v. Burger Brewing Co., 317 S.W.2d 865, 1958 Ky. LEXIS 104 ( Ky. 1958 ).

Where a writing acknowledged the receipt of a sum of money with possession of the property to be given on a day certain with the payment of the balance of the price, the written instrument was sufficient to sustain a decree of specific performance. Sullivan v. Lay, 457 S.W.2d 266, 1970 Ky. LEXIS 199 ( Ky. 1970 ).

Jury found convincing appellee's evidence related to the existence and terms of the non-competition agreement and that a written contract did exist, and thus the statute of frauds was satisfied. Alph C. Kaufman, Inc. v. Cornerstone Indus. Corp., 540 S.W.3d 803, 2017 Ky. App. LEXIS 46 (Ky. Ct. App. 2017).

95. Insufficient Writing.

A memorandum which does not purport to be made for or on behalf of others conveys nothing except the individual interest of the person signing. Linville v. Langford, 47 S.W. 248, 20 Ky. L. Rptr. 590 (1898).

A promissory note did not constitute sufficient memorandum to satisfy the statute of frauds. Second Nat'l Bank v. Rouse, 142 Ky. 612 , 134 S.W. 1121, 1911 Ky. LEXIS 249 ( Ky. 1911 ).

A pleading by which one asserts his cause of action or defense does not constitute a sufficient memorandum to satisfy this section. Cornett v. Clere, 193 Ky. 590 , 236 S.W. 1036, 1922 Ky. LEXIS 30 ( Ky. 1922 ).

A letter proposing a contract upon certain terms could not be construed as a written memorandum evidencing a consummated executory contract. Gorman v. Gorman, 210 Ky. 65 , 275 S.W. 366, 1925 Ky. LEXIS 628 ( Ky. 1925 ).

Mutual wills whereby parties reciprocally devise realty to each other do not constitute a memorandum which meets the requirements of this section. Gibson v. Crawford, 247 Ky. 228 , 56 S.W.2d 985, 1932 Ky. LEXIS 871 ( Ky. 1932 ).

Minutes of vendor trust company recording the joint meeting of its board with that of vendee bank did not constitute sufficient memorandum in writing where they were not signed by company’s authorized representative and no copy was delivered to vendee bank. Louisville Trust Co. v. National Bank of Kentucky, 102 F.2d 137, 1939 U.S. App. LEXIS 4804 (6th Cir. Ky.), cert. denied, 308 U.S. 564, 60 S. Ct. 76, 84 L. Ed. 474, 1939 U.S. LEXIS 345 (U.S. 1939).

Statement alleged to have been published in newspaper to the effect that bank would have a new home at address of real estate which was subject matter of alleged oral contract did not comply with the requirement of a writing signed by the vendor or of consent by the vendee. Louisville Trust Co. v. National Bank of Kentucky, 102 F.2d 137, 1939 U.S. App. LEXIS 4804 (6th Cir. Ky.), cert. denied, 308 U.S. 564, 60 S. Ct. 76, 84 L. Ed. 474, 1939 U.S. LEXIS 345 (U.S. 1939).

Correspondence between the parties which failed to show what specific area of coal property was involved, either the beginning or the ending of the period in which the operations were to be performed, or the provisions governing the respective rights, duties and obligations of the contracting parties was insufficient to constitute a written memorandum of the agreement. Lively v. Elkhorn Coal Co., 206 F.2d 396, 1953 U.S. App. LEXIS 3987 (6th Cir. Ky. 1953 ).

Where guarantors signed blank guaranty forms but gave no written authorization to debtor’s representative to act on their behalf, no legal agency relationship existed and guaranty agreements were unenforceable. Citizens Fidelity Bank v. Lamar, 561 S.W.2d 326, 1977 Ky. App. LEXIS 892 (Ky. Ct. App. 1977).

Where a borrower and lender orally agreed to convert a line of credit into an installment loan supported by collateral but where the lender refused to enter into the agreement after rejecting the collateral, the borrower’s breach of contract failed under the statute of frauds because there was no written agreement. Gray v. First State Fin., Inc., 2009 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 18, 2009).

In a lender’s suit to recover on several unpaid loans from a borrower and its guarantors, the statute of frauds barred one guarantor’s defense asserting that there was an overarching oral agreement that her loan guaranties would not be enforced since this oral agreement was inconsistent with the express terms of the written guaranties. Fifth Third Bank v. Waxman, 726 F. Supp. 2d 742, 2010 U.S. Dist. LEXIS 66712 (E.D. Ky. 2010 ).

96. Description of Subject of Contract.

Any conveyance or encumbrance of a devisee’s share of an estate describing it as all of his share in a particular estate is a sufficient description. Thompson's Ex'rs v. Stiltz, 96 S.W. 884, 29 Ky. L. Rptr. 1075 (1906).

Uncertainty of description in memorandum is cured by taking possession of thing conveyed. Jones v. Jones, 101 S.W. 980, 31 Ky. L. Rptr. 183 (1907).

A memorandum must afford the means of identifying the subject matter of the contract in order to satisfy this section. Price v. Hays, 144 Ky. 535 , 139 S.W. 810 ( Ky. 1911 ); McClanahan v. Brown, 157 Ky. 450 , 163 S.W. 467, 1914 Ky. LEXIS 313 ( Ky. 1914 ); Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818 , 178 S.W. 1084, 1915 Ky. LEXIS 607 ( Ky. 1915 ); Justice v. Justice, 239 Ky. 155 , 39 S.W.2d 250, 1931 Ky. LEXIS 757 ( Ky. 1931 ).

The necessity for a description of the subject of the contract comes from general contract law and not from the statute of frauds; thus a contract may be reduced to writing and meet all the requirements of the statute of frauds and yet be unenforceable for lack of definiteness. McMee v. Henry, 163 Ky. 729 , 174 S.W. 746, 1915 Ky. LEXIS 316 ( Ky. 1915 ).

The description in the memorandum must be sufficient to relieve the court from the necessity of relying on parol evidence to designate the subject matter of the contract. Duteil v. Mullins, 192 Ky. 616 , 234 S.W. 192, 1921 Ky. LEXIS 115 ( Ky. 1921 ).

97. Signature.

It is not necessary that purchaser sign the memorandum. Hyden v. Perkins, 119 Ky. 188 , 83 S.W. 128, 26 Ky. L. Rptr. 1099 , 1904 Ky. LEXIS 154 ( Ky. 1904 ); Moore v. Chenault, 29 S.W. 140, 16 Ky. L. Rptr. 531 (1895).

The vendor cannot maintain an action on a writing unless he has signed it, even though vendee has signed it. King v. Cheatham, 104 S.W. 751, 31 Ky. L. Rptr. 1176 (1907); Kaiser v. Jones, 157 Ky. 607 , 163 S.W. 741, 1914 Ky. LEXIS 331 ( Ky. 1914 ).

The vendor of realty is the party to be charged and not the purchaser; hence a vendor cannot recover on a verbal agreement to sell land to a city, though the city wrote the acceptance of the agreement into the minutes. Murray v. Crawford, 138 Ky. 25 , 127 S.W. 494, 1910 Ky. LEXIS 36 ( Ky. 1910 ).

A writing signed on its face by party whose name appeared in print on the back complied with this section. Equitable Life Assurance Soc. v. Meuth, 145 Ky. 160 , 140 S.W. 157, 1911 Ky. LEXIS 810 (Ky.), modified, 145 Ky. 746 , 141 S.W. 37, 1911 Ky. LEXIS 921 ( Ky. 1911 ).

If the vendor of realty signs a contract of sale, and it is delivered to and accepted by the vendee, the vendee is bound thereon, regardless of whether or not he has signed the contract. Wren v. Cooksey, 147 Ky. 825 , 145 S.W. 1116, 1912 Ky. LEXIS 360 ( Ky. 1912 ).

A writing signed solely by the vendee will not support any action. Armstrong v. Lyen, 148 Ky. 59 , 145 S.W. 1120, 1912 Ky. LEXIS 372 ( Ky. 1912 ); Smith v. Ballou, 211 Ky. 281 , 277 S.W. 286, 1925 Ky. LEXIS 866 ( Ky. 1925 ).

A signature made on a previous occasion may be adopted for a new writing with the same effect as if made anew. Pontrich v. Neimann, 208 Ky. 715 , 271 S.W. 1049, 1925 Ky. LEXIS 373 ( Ky. 1925 ).

The written memorandum of a contract need be signed by the vendor only, as he is the party to be charged, but it must be delivered and accepted by the vendee before it becomes enforceable by either party. Gorman v. Gorman, 210 Ky. 65 , 275 S.W. 366, 1925 Ky. LEXIS 628 ( Ky. 1925 ).

A writing to pass title to realty must be signed by the vendor. Reeves v. Walker, 219 Ky. 615 , 294 S.W. 183, 1927 Ky. LEXIS 422 ( Ky. 1927 ).

A written option to purchase realty signed by the owner is valid and enforceable though not signed by the optionee. Klatch v. Simpson, 237 Ky. 84 , 34 S.W.2d 951, 1931 Ky. LEXIS 546 ( Ky. 1931 ).

This section requires only that the vendor of realty sign the memorandum, but there must be mutuality in the contract, and where memorandum is executed subsequent to a parol agreement to convey land and signed only by the vendor, it must be accepted or signed by the vendee before he will be liable thereon. National Bank of Kentucky v. Louisville Trust Co., 67 F.2d 97, 1933 U.S. App. LEXIS 4369 (6th Cir. Ky. 1933 ), cert. denied, 291 U.S. 665, 54 S. Ct. 440, 78 L. Ed. 1056, 1934 U.S. LEXIS 607 (U.S. 1934).

A contract for the sale of real estate may be proved if it is evidenced by writings substantially embodying its terms and signed only by the vendor but, in order to insure the agreement possesses mutuality, the rule is subject to the qualification that the memorandum must be delivered to and accepted by the vendee before the contract becomes enforceable by either party. Louisville Trust Co. v. National Bank of Kentucky, 102 F.2d 137, 1939 U.S. App. LEXIS 4804 (6th Cir. Ky.), cert. denied, 308 U.S. 564, 60 S. Ct. 76, 84 L. Ed. 474, 1939 U.S. LEXIS 345 (U.S. 1939).

Where the purchaser’s former spouse argued under this section that because she did not sign the purchase agreement itself she was not obligated to pay the listing broker’s commission, it was held to be beyond dispute that she ratified the agreement by her signature to the land contract. Cox v. Venters, 887 S.W.2d 563, 1994 Ky. App. LEXIS 121 (Ky. Ct. App. 1994).

Where an attorney’s employee encouraged him to pursue a class action lawsuit against a drug manufacturer and solicited clients on his behalf, where the attorney allegedly agreed to pay the employee more than a million dollars over a 10-year period if the suit was successful, and where the attorney failed to pay the amount as promised, the alleged contract was unenforceable under the statute of frauds because there was no signed writing. 15 U.S.C.S. § 7006(5) did not obviate the signature requirement because the statute required more than a mere verbal assent recorded in secret; it required the equivalent of a signature, such as an electronic sound, symbol, or process solemnizing the agreement and evidencing an intent to enter into it. Sawyer v. Mills, 295 S.W.3d 79, 2009 Ky. LEXIS 195 ( Ky. 2009 ).

Plaintiff failed to state a claim for breach of contract or promissory estoppel because the parties' allegedly breached franchise agreement was signed only by plaintiff's members, and therefore was barred by the statute of frauds. 859 Boutique Fitness LLC v. CycleBar Franchising, LLC, 2016 U.S. Dist. LEXIS 59744 (E.D. Ky. May 5, 2016), dismissed, 2016 U.S. Dist. LEXIS 109842 (E.D. Ky. Aug. 18, 2016).

98. Consideration.

Consideration may be proved or disproved by parol evidence. Continental Casualty Co. v. Jasper, 121 Ky. 77 , 88 S.W. 1078, 28 Ky. L. Rptr. 53 , 1905 Ky. LEXIS 181 ( Ky. 1905 ); Central University of Kentucky v. Walters' Ex'rs, 122 Ky. 65 , 90 S.W. 1066, 28 Ky. L. Rptr. 1041 , 1906 Ky. LEXIS 23 ( Ky. 1906 ).

Consideration need not be expressed in the writing. Campbell v. Preece, 133 Ky. 572 , 118 S.W. 373, 1909 Ky. LEXIS 210 ( Ky. 1909 ).

Where contract recites that certain consideration was paid, vendor cannot show by parol evidence that the amount recited as paid was not paid, but in lieu thereof there was an oral promise to convey certain other land on demand. Richardson v. Isaacs, 118 S.W. 1003 ( Ky. 1909 ).

Even though a writing contains a recital of consideration, it may be impeached by parol evidence without an allegation of fraud or mistake. Menser v. Lea, 176 Ky. 391 , 195 S.W. 813, 1917 Ky. LEXIS 64 ( Ky. 1917 ); Robinson's Adm'r v. Alexander, 194 Ky. 494 , 239 S.W. 786, 1922 Ky. LEXIS 177 ( Ky. 1922 ); Steele v. Hinkle, 205 Ky. 408 , 265 S.W. 931, 1924 Ky. LEXIS 125 ( Ky. 1924 ).

A note or check given under a parol contract for the sale of land, where the vendee has not been put in possession, is wholly without consideration. Reese v. Bailey, 199 Ky. 504 , 251 S.W. 633, 1923 Ky. LEXIS 870 ( Ky. 1923 ).

Every writing evidencing an indebtedness imports a consideration. Greenup v. Wilhoite, 212 Ky. 465 , 279 S.W. 665, 1926 Ky. LEXIS 174 ( Ky. 1926 ).

The consideration which may be proved or disproved by parol evidence is not limited to strictly monetary consideration. Wilson v. Mitchell, 245 Ky. 55 , 53 S.W.2d 175, 1932 Ky. LEXIS 531 ( Ky. 1932 ).

99. Parties.

The statute of frauds cannot be invoked by third parties, even including creditors. Walker v. Walker's Assignee, 41 S.W. 315, 19 Ky. L. Rptr. 626 (1897); Walker's Assignee v. Walker, 55 S.W. 726, 21 Ky. L. Rptr. 1521 , 1900 Ky. LEXIS 567 (Ky. Ct. App. 1900); Givens v. Mason, 205 Ky. 432 , 266 S.W. 7, 1924 Ky. LEXIS 140 ( Ky. 1924 ); Jackson v. Coons, 285 Ky. 154 , 147 S.W.2d 45, 1941 Ky. LEXIS 343 ( Ky. 1941 ).

The plea of the statute of frauds is personal to the parties sought to be charged and their privies. Elliott v. Scoville's Assignee, 144 Ky. 584 , 139 S.W. 806, 1911 Ky. LEXIS 682 ( Ky. 1911 ); Niagara Fire Ins. Co. v. Layne, 162 Ky. 665 , 172 S.W. 1090, 1915 Ky. LEXIS 143 ( Ky. 1915 ).

An unsuccessful bidder at judicial sale was not the party to be charged, and could not, therefore, contend that the sale was unenforceable because a proper memorandum was not made. Kentucky Utilities Co. v. Steenman, 283 Ky. 317 , 141 S.W.2d 265, 1940 Ky. LEXIS 325 ( Ky. 1940 ).

100. Pleading.

The statute could be taken advantage of by a general denial. (decided under prior law) Brown v. East, 21 Ky. 405 , 1827 Ky. LEXIS 181 ( Ky. 1827 ); Hocker v. Gentry, 60 Ky. 463 , 1861 Ky. LEXIS 20 ( Ky. 1861 ).

Where contract relied on was within the statute and petition did not contain allegations showing compliance, the defense of the statute could be raised by demurrer. (decided under prior law) Bull v. McCrea, 47 Ky. 422 , 1848 Ky. LEXIS 97 ( Ky. 1848 ); Smith v. Fah, 54 Ky. 443 , 1854 Ky. LEXIS 85 ( Ky. 1854 ); Smith v. Theobald, 86 Ky. 141 , 5 S.W. 394, 9 Ky. L. Rptr. 449 , 1887 Ky. LEXIS 109 ( Ky. 1887 ).

Contracts not alleged to be in writing must be presumed to have been parol. Morgan v. Wickliffe, 110 Ky. 215 , 61 S.W. 13, 22 Ky. L. Rptr. 1648 , 1901 Ky. LEXIS 66 ( Ky. 1901 ); Todd v. Finley, 166 Ky. 546 , 179 S.W. 455, 1915 Ky. LEXIS 729 ( Ky. 1915 ); Givens v. Mason, 205 Ky. 432 , 266 S.W. 7, 1924 Ky. LEXIS 140 ( Ky. 1924 ); Myers v. Taneyhill, 213 Ky. 333 , 280 S.W. 1115, 1926 Ky. LEXIS 510 ( Ky. 1926 ); Dysart v. Dawkins Log & Mill Co., 222 Ky. 415 , 300 S.W. 906, 1927 Ky. LEXIS 936 ( Ky. 1927 ).

Where it is not alleged that the contract was in writing, the presumption is that it was oral, and the defense of the statute of frauds may be presented by demurrer. Boone v. Coe, 153 Ky. 233 , 154 S.W. 900, 1913 Ky. LEXIS 783 ( Ky. 1913 ); Todd v. Finley, 166 Ky. 546 , 179 S.W. 455, 1915 Ky. LEXIS 729 ( Ky. 1915 ).

When an action is founded on a writing, the material parts of it should be set out in the petition, and it should be filed as a part of the petition. Matherley v. Wright, 171 Ky. 264 , 188 S.W. 385, 1916 Ky. LEXIS 346 ( Ky. 1916 ).

The statute may be taken advantage of by a general denial. Cumberland & M. R. Co. v. Posey, 196 Ky. 379 , 244 S.W. 770, 1922 Ky. LEXIS 514 ( Ky. 1922 ).

Where contract relied on is within this section and petition does not contain allegations showing compliance, the defense of the statute may be raised by demurrer. Pope v. Myers, 218 Ky. 731 , 292 S.W. 318, 1927 Ky. LEXIS 240 ( Ky. 1927 ); Dysart v. Dawkins Log & Mill Co., 222 Ky. 415 , 300 S.W. 906, 1927 Ky. LEXIS 936 ( Ky. 1927 ); Nugent v. Humpich, 231 Ky. 122 , 21 S.W.2d 153, 1929 Ky. LEXIS 233 ( Ky. 1929 ); Gibson v. Crawford, 247 Ky. 228 , 56 S.W.2d 985, 1932 Ky. LEXIS 871 ( Ky. 1932 ).

The insufficiency of the description of property in the memo may be raised by general demurrer. Carpenter v. Connelley, 260 Ky. 596 , 86 S.W.2d 315, 1935 Ky. LEXIS 521 ( Ky. 1935 ).

Where making of contract sued on is denied by defendant, the statute of frauds may be relied upon although not specifically pleaded by defendant. King v. McMillan, 293 Ky. 399 , 169 S.W.2d 10, 1943 Ky. LEXIS 623 ( Ky. 1943 ).

Where contract sued on was presumed to be oral because of failure of petition to allege otherwise and defendant denied the contract, denial raised issue of validity of contract and defendant could rely on statute of frauds in support of her position on such issue without necessity of specially pleading the statute as a defense. Williamson v. Stafford, 301 Ky. 59 , 190 S.W.2d 859, 1945 Ky. LEXIS 690 ( Ky. 1945 ).

The plea of this section is personal to the party sought to be charged and his privies. Finley v. Ford, 304 Ky. 136 , 200 S.W.2d 138, 1947 Ky. LEXIS 598 ( Ky. 1947 ).

In action to recover sum advanced under oral contract for purchase of real estate where there was a question as to whether vendor or vendee repudiated the contract first, vendee could amend petition after remand of case to show vendor repudiated the contract first, since vendee had been the successful party in the trial court and there had been no occasion to amend her petition and she had not declined to plead further. Wells v. Watkins, 307 Ky. 449 , 211 S.W.2d 410, 1948 Ky. LEXIS 761 ( Ky. 1948 ).

It was not necessary to plead the statute of frauds where the answer denied making the contract sued on and petition showed contract sued upon to be oral. Kirby v. Scroggins, 246 S.W.2d 453, 1952 Ky. LEXIS 626 ( Ky. 1952 ).

Defense of statute of frauds should have been raised by answer rather than on motion for summary judgment but, even if properly presented by motion, the issue became moot when appellees relinquished their claim to more than seven (7) months’ rent. Whitesburg v. Bates, 320 S.W.2d 316, 1959 Ky. LEXIS 233 ( Ky. 1959 ).

101. Parol Evidence.

Parol evidence is admissible, without an allegation of fraud or mistake, to show that a deed absolute on its face is a mortgage. Hobbs v. Rowland, 136 Ky. 197 , 123 S.W. 1185, 1909 Ky. LEXIS 467 ( Ky. 1909 ) ( Ky. 1909 ); Turner v. Newberry, 166 Ky. 196 , 179 S.W. 23, 1915 Ky. LEXIS 659 ( Ky. 1915 ); Shepherd v. Miller, 242 Ky. 250 , 46 S.W.2d 78, 1932 Ky. LEXIS 249 ( Ky. 1932 ).

Where oil lease provided that the drilling of a well should be consideration for a 1,000-acre block, the limits of the block as well as the drilling of the well could be proved by parol evidence. Wilson v. Mitchell, 245 Ky. 55 , 53 S.W.2d 175, 1932 Ky. LEXIS 531 ( Ky. 1932 ).

The extrinsic evidence allowed is only such as to designate the land identified by the memorandum. Dailey v. Anglin, 297 Ky. 266 , 180 S.W.2d 78, 1944 Ky. LEXIS 722 ( Ky. 1944 ).

The statute of frauds demands a writing which itself affords a means by which the property sold can be identified, and while parol evidence is not admissible to vary or add to the writing, it is admissible to designate the subject matter already identified in the minds of the parties. Hon v. Richerson, 301 Ky. 837 , 193 S.W.2d 441, 1946 Ky. LEXIS 579 ( Ky. 1946 ).

It was not the intent of the legislature to do away with the parol evidence rule with this section. C. C. Leonard Lumber Co. v. Reed, 314 Ky. 703 , 236 S.W.2d 961, 1951 Ky. LEXIS 737 ( Ky. 1951 ).

Where deed conveying lumber company contained a provision that grantee would employ grantor at specified monthly wage, agreement for employment went to substantial part of consideration for conveyance and parol evidence that grantor was to be employed by grantee so long as grantor could work was admissible in action for cancellation of deed in order to ascertain true consideration. C. C. Leonard Lumber Co. v. Reed, 314 Ky. 703 , 236 S.W.2d 961, 1951 Ky. LEXIS 737 ( Ky. 1951 ).

Parol evidence may not be used to supply the essentials of a contract to a writing for the purpose of satisfying the requirement of the statute of frauds. Treacy v. James, 274 S.W.2d 46, 1954 Ky. LEXIS 1218 ( Ky. 1954 ).

Where a written purchase agreement that included details on the payment of real estate broker’s commission was claimed by the purchaser to be modified by a subsequent verbal agreement, this section specified that a subsequent agreement which changed the original terms must also have been written and signed by the party to be charged. Cox v. Venters, 887 S.W.2d 563, 1994 Ky. App. LEXIS 121 (Ky. Ct. App. 1994).

In a bank customer’s action that arose when the lending relationship between the bank and customer turned sour, the district court properly dismissed the customer’s claims for breach of contract and breach of the covenant of fair dealing and good faith because, inter alia, the court could not consider parol evidence or oral representations pursuant to the statute of frauds. KSA Enters. v. Branch Banking & Trust Co., 761 Fed. Appx. 456, 2019 FED App. 0021N, 2019 U.S. App. LEXIS 1198 (6th Cir. Ky. 2019 ).

102. Estoppel.

The operation of an estoppel is never affected by the statute of frauds. Stiefvater v. Stiefvater, 246 Ky. 646 , 53 S.W.2d 926, 1932 Ky. LEXIS 691 ( Ky. 1932 ).

In suit for settlement of estate, heirs could not set up the statute of frauds against the validity of their agreement to divide the realty and personalty, where they had estopped themselves by permitting the partition of the lands in accordance with the agreement, and each had accepted a deed to his part. Caudill v. Trimble's Adm'r, 273 Ky. 793 , 117 S.W.2d 993, 1938 Ky. LEXIS 721 ( Ky. 1938 ).

In an action to enjoin surviving lessor from preventing removal of fixtures from used car lot by lessee when she refused to renew an oral five (5) year lease although lessee had paid the rental, surviving lessor was estopped from claiming as a defense that the lease was within the statute of frauds and unenforceable, since she had accepted the benefits under it. Manis v. Goodlette, 304 Ky. 23 , 199 S.W.2d 738, 1947 Ky. LEXIS 578 ( Ky. 1947 ).

In the absence of a valid boundary agreement or adverse possession, a line may nevertheless become fixed by the operation of estoppel. Faulkner v. Lloyd, 253 S.W.2d 972, 1952 Ky. LEXIS 1126 ( Ky. 1952 ).

The statute of frauds is a legislative enactment designed to prevent the perpetration of fraud; on the other hand the doctrine of equitable estoppel is a remedy from fraud, limited only by equitable principles. Bennett v. Horton, 592 S.W.2d 460, 1979 Ky. LEXIS 318 ( Ky. 1979 ).

The statute of frauds does not invalidate oral contracts per se, but merely renders certain specified types of oral contracts unenforceable; however, there may be a valid estoppel basis, in some cases, for excepting a questioned transaction from the statute’s application. Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986).

The wife was estopped to rely on the statute of frauds as a defense to the enforcement of the parties’ property settlement agreement, where the oral agreement was dictated to a court reporter at a scheduled deposition, subsequently transcribed, and then in its transcribed form made a part of the clerk’s record. Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986).

The doctrine of estoppel may, under the proper circumstances, prevent a party from employing the statute of frauds. Nicholson v. Clark, 802 S.W.2d 934, 1990 Ky. App. LEXIS 82 (Ky. Ct. App. 1990).

Debtor, who sought a declaratory judgment that his mortgage payment was permanently modified by an agreement between him and the trust company’s predecessor, could not prevail under his theory as his allegations did not support an estoppel argument sufficient to overcome the statute of frauds. The Kentucky Supreme Court had clearly stated that promissory estoppel cannot defeat the statute of frauds. In re Ziegler, 2013 Bankr. LEXIS 58 (Bankr. E.D. Ky. Jan. 4, 2013).

103. Evidence.

Evidence that oral contract between chief stockholder of bank and new chief executive officer called for new officer to keep bank open, that the bank would close unless its chief executive officer was immediately replaced with a person satisfactory to the FDIC and that new officer’s main obligation was to keep bank from being closed and he performed that part of the contract within a year was sufficient to take such contract out of the statute of frauds. Texas American Bank v. Sayers, 674 S.W.2d 36, 1984 Ky. App. LEXIS 504 (Ky. Ct. App. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1180, 84 L. Ed. 2d 328, 1985 U.S. LEXIS 903 (U.S. 1985).

Appellee’s argument that the statute of frauds precluded any claim of fraudulent misrepresentation based upon an oral promise or contract was misplaced; the appellee’s future promise or representation could not form the basis of appellant’s claims of fraudulent misrepresentation, and aside from appellee’s alleged representation, the evidence was circumstantial. It was for the trier of fact to resolve whether the evidence supporting that appellee actually made that promise was more convincing than evidence to the contrary, and thus summary judgment was inappropriate. PCR Contrs., Inc. v. Danial, 354 S.W.3d 610, 2011 Ky. App. LEXIS 213 (Ky. Ct. App. 2011).

104. Auction of Real Property.

Where an auction agreement was signed by sellers of real property, and the bidder’s registration form and the bidder’s contract were signed by a “by-bidder”, even when considered together, they did not refer to each other and could only be connected by parol evidence; consequently, these writings were not sufficient to satisfy this section. Nicholson v. Clark, 802 S.W.2d 934, 1990 Ky. App. LEXIS 82 (Ky. Ct. App. 1990).

105. Time of the Essence.

Because a loan contract would expire if the closing date were not met, by implication, time was of the essence; without an agreement extending the contract’s expiration date that satisfied the statute of frauds, KRS 371.010(9), the contract’s expiration date was not extended and the bank was entitled to summary judgment. Farmers Bank & Trust Co. v. Willmott Hardwoods, Inc., 171 S.W.3d 4, 2005 Ky. LEXIS 241 ( Ky. 2005 ).

106. Agreements to Loan Money or Make Financial Accommodations.

Alleged oral agreement for the purchase and financing of a defendant’s interest in a business constituted a promise to grant or extend credit, or to make financial accommodations to assist a business enterprise; thus, it fell squarely within the Statute of Frauds, KRS 371.010(9), and had to be in writing to be enforceable. Flinn v. R.M.D. Corp., 2011 U.S. Dist. LEXIS 122109 (W.D. Ky. Oct. 20, 2011).

Writing requirement of the statute of frauds was not satisfied because a bank’s agreement with a borrower to send funds to a third party on the borrower’s behalf lacked the essential terms to create a loan contract, and those terms could not be supplied by other documents that did not refer to the agreement. Guangzhou Consortium Display Prod. Co. v. PNC Bank, N.A., 956 F. Supp. 2d 769, 2013 U.S. Dist. LEXIS 96172 (E.D. Ky. 2013 ).

Cited:

Hotze v. Ring, 273 Ky. 48 , 115 S.W.2d 311, 1938 Ky. LEXIS 576 ( Ky. 1938 ); Sumner v. Hall, 273 Ky. 138 , 116 S.W.2d 309, 1938 Ky. LEXIS 615 (1938); Gibbs v. Anderson, 288 Ky. 48 8 , 156 S.W.2d 876, 1941 Ky. LEXIS 152 ( Ky. 1941 ); Fisher v. Long, 294 Ky. 751 , 172 S.W.2d 545, 1943 Ky. LEXIS 514 ( Ky. 1943 ); Maddox v. Keeler, 296 Ky. 440 , 177 S.W.2d 568, 1944 Ky. LEXIS 560 , 162 A.L.R. 578 ( Ky. 1944 ); Evans v. Caudill, 296 Ky. 460 , 177 S.W.2d 586, 1944 Ky. LEXIS 567 ( Ky. 1944 ); Kentucky Hotel, Inc. v. Cinotti, 298 Ky. 88 , 182 S.W.2d 27, 1944 Ky. LEXIS 843 (Ky. 1944); Rash v. Peoples Deposit Bank & Trust Co., 91 F. Supp. 825, 1950 U.S. Dist. LEXIS 2828 (D. Ky. 1950 ); Antle v. Haas, 251 S.W.2d 290, 1952 Ky. LEXIS 910 ( Ky. 1952 ); Robbins v. Frank Fehr Brewing Co., 284 S.W.2d 680, 1955 Ky. LEXIS 42 , 55 A.L.R.2d 943 ( Ky. 1955 ); Potter v. Chaney, 290 S.W.2d 44, 1956 Ky. LEXIS 309 ( Ky. 1956 ); Harper v. Johnson, 294 S.W.2d 928, 1956 Ky. LEXIS 145 ( Ky. 1956 ); Scoggan v. Hoff, 165 F. Supp. 424, 1958 U.S. Dist. LEXIS 3704 (D. Ky. 1958 ); Courtin v. Sharp, 283 F.2d 255, 1960 U.S. App. LEXIS 3358 (5th Cir. 1960); Cuppy v. General Acci. Fire & Life Assurance Corp., 378 S.W.2d 629, 1964 Ky. LEXIS 198 ( Ky. 1964 ); Cougler v. Fackler, 510 S.W.2d 16, 1974 Ky. LEXIS 518 ( Ky. 1974 ); Johnson v. Kentucky Youth Research Center, Inc., 682 S.W.2d 799, 1985 Ky. App. LEXIS 494 (Ky. Ct. App. 1985); Adkins v. Cornett, 684 S.W.2d 853, 1985 Ky. App. LEXIS 517 (Ky. Ct. App. 1985); Jackson v. Jackson, 734 S.W.2d 498, 1987 Ky. App. LEXIS 529 (Ky. Ct. App. 1987); State St. Bank & Trust Co. v. Heck’s Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ); Thompson v. Budd Co., 199 F.3d 799, 1999 U.S. App. LEXIS 32121 (6th Cir. 1999), rehearing denied, — F.3d —, 1999 U.S. App. LEXIS 34897 (6th Cir. 1999), rehearing denied, — F.3d —, 2000 U.S. App. LEXIS 579 (6th Cir. 2000), cert. denied, 530 U.S. 1229, 120 S. Ct. 2659, 147 L. Ed. 2d 273, 2000 U.S. LEXIS 4013 (2000); Charles v. Stump (In re Charles), — B.R. —, 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. 2004 ).

Notes to Unpublished Decisions

1. Insufficient Writing.

Unpublished decision: Execution of the financing plan between the automobile credit corporation and the owner of the dealership did not create a fiduciary relationship and the corporation was under no obligation to reinstate the financing plan absent the subordination of the Internal Revenue Service’s (IRS) superior lien under 26 U.S.C.S. § 6323; thus, pursuant to the statute of frauds in Kentucky, KRS 371.010(9), there was no breach of an oral contract because the corporation orally agreed to reinstate the financing plan because the IRS’s lien had not been subordinated and the corporation’s motion for summary judgment was properly granted under Fed. R. Civ. P. 56(c). Vinson v. Ford Motor Credit Corp., 56 Fed. Appx. 220, 2003 U.S. App. LEXIS 1236 (6th Cir. Ky. 2003 ).

Opinions of Attorney General.

This section has no relation to the system of constructive notice established pursuant to KRS 382.100 and 382.270 , regarding recorded contracts for the sale of real property. Therefore, the recording of a memorandum of a coal lease will not suffice to be effective against bona fide purchasers for value without notice. OAG 82-296 .

Research References and Practice Aids

Cross-References.

Assignment by tenant invalid unless landlord gives written consent, KRS 383.180 .

Conveyance for over five (5) years or marriage agreement to be acknowledged or recorded, KRS 382.080 .

Landlord and tenant, recovery on oral contract between, KRS 383.090 .

Law impairing obligation of contract forbidden, Ky. Const., § 19.

Lessee’s agreement to erect similar buildings to be in writing, KRS 383.170 .

Mortgage, release, or waiver of exemption to be in writing, KRS 427.100 .

Writing required to be signed must be signed at end, KRS 446.060 .

Kentucky Law Journal.

Hall, Rights of a Teacher in the Public Schools When School Is Closed, 25 Ky. L.J. 261 (1937).

Ferguson, Motion for Judgment on the Pleadings in Kentucky Other than for Judgment Notwithstanding the Verdict, 25 Ky. L.J. 263 (1938).

Fanning, Some Observations of the So-Called Doctrine of Mutual Remedy and Its Application in Kentucky, 26 Ky. L.J. 129 (1938).

Gilbert, Conveyances — Validity of Parol Agreements as to Determinable Boundary Lines, 27 Ky. L.J. 340 (1939).

Evans, “The First Words in a Deed and the Last in a Will Prevail” or “Testamentary Revocation by Inconsistency Within the Instrument,” 28 Ky. L.J. 45 (1939).

Sharp, Covenants Not to Compete in Kentucky, 29 Ky. L.J. 110 (1940).

Evans, Concerted Wills — A Possible Device for Avoiding the Widow’s Privilege of Renunciation, 33 Ky. L.J. 79 (1945).

Redwine, Partnerships — Title to Real Property, 34 Ky. L.J. 311 (1946).

Evans, Concerted Wills — Again, 35 Ky. L.J. 214 (1947).

Kinnaird, Specific Performance Contracts for Sale of Non-Unique Standing Timber for Immediate Severance, 36 Ky. L.J. 221 (1948).

Thompson, Oral Contracts for the Sale of Standing Timber in Kentucky, 38 Ky. L.J. 175 (1949).

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Kropp, Landen and Donath, The Prevention and Treatment of Breeding Contract Controversies, 74 Ky. L.J. 715 (1985-86).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, In Kentucky, A Lease versus a Sale of Coal in Place, 7 N. Ky. L. Rev. 439 (1980).

Cox, Lender Liability in the Bluegrass: Are New Theories Emerging Under Kentucky Law?, 16 N. Ky. L. Rev. 43 (1988).

Miller, Notes, Piercing the Corporate Veil in Kentucky: An Analysis of United States v. WRW Corp., 22 N. Ky. L. Rev. 541 (1995).

Article: Thou Shalt Not Lie: Enforcement of Non-Reliance Clauses Under Kentucky Law, 35 N. Ky. L. Rev. 157 (2008).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Various Defenses Based upon Writing or Signature Formalities or Lack of Definiteness, Form 210.16.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Breach of Written Contract (General Form), Form 210.04.

Caldwell’s Kentucky Form Book, 5th Ed., Contract for Sale of Standing Timber, Form 352.02.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Dismiss on Ground of Statute of Frauds, Form 51.19.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Contracts, § 210.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Logs and Timber, § 352.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

Petrilli, Kentucky Family Law, Minors, § 30.8.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.5.

Petrilli, Kentucky Family Law, Suits for Breach of Marriage Promise, § 3.1.

371.020. Seal not necessary on any writing — Exceptions.

A seal or scroll is not necessary in order to give effect to any writing. All unsealed writings shall stand upon the same footing with sealed writings, shall have the same effect, and the same actions may be brought thereon. This section does not apply to any law requiring the state or county seal or the seal of a court, corporation or notary to any writing.

History. 471.

NOTES TO DECISIONS

1. Construction.

The distinction between sealed and unsealed instruments has been abolished by this section. Thompson-Starrett Co. v. Mason's Adm'rs, 304 Ky. 764 , 201 S.W.2d 876, 1946 Ky. LEXIS 938 ( Ky. 1946 ).

Although the distinction between instruments under seal and those not under seal has been abolished in this state by this section, some of the common-law rules applicable to specialties (obligations under seal) are still recognized. Mutual Trust & Deposit Co. v. Boone, 267 S.W.2d 751, 1954 Ky. LEXIS 870 ( Ky. 1954 ).

2. Consideration.

In declaring on a written contract, it is unnecessary to state the consideration. Bronston's Adm'r v. Lakes, 135 Ky. 173 , 121 S.W. 1021, 1909 Ky. LEXIS 271 ( Ky. 1909 ); Globe & Rutgers Fire Ins. Co. v. Hensley, 206 Ky. 202 , 266 S.W. 1074, 1924 Ky. LEXIS 299 ( Ky. 1924 ).

3. Bonds.

A bond being an obligation under seal, and all written instruments having now the dignity of sealed instruments, a devise of bonds includes promissory notes. Schoonmaker v. Mitchell's Adm'r, 144 Ky. 794 , 139 S.W. 968, 1911 Ky. LEXIS 732 ( Ky. 1911 ).

4. Conflict of Laws.

A note not under seal executed in Kentucky and sued upon in Virginia, in which last state writings under seal did not have the same standing as sealed instruments, was subject to the Virginia statute of limitations applying to non-specialty obligations. (decided under prior law) Bank of United States v. Donnally, 33 U.S. 361, 8 L. Ed. 974, 1834 U.S. LEXIS 595 (U.S. 1834).

Research References and Practice Aids

Kentucky Law Journal.

Taylor, Charitable Subscription Contracts and the Kentucky Law, 29 Ky. L.J. 23 (1940).

Gold, The Present Status of the Rule in Pinnel’s Case, 30 Ky. L.J. 187 (1941).

371.030. Consideration of writing may be impeached.

The consideration of any writing, with or without seal, may be impeached or denied by pleading.

History. 472: amend. Acts 1952, ch. 84, § 49.

NOTES TO DECISIONS

1. Construction.

The effect of this section is not to require the writing to be ignored and the issue tried solely on parol evidence. The writing is prima facie correct. Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ); O'Neal v. Turney's Ex'x, 222 Ky. 361 , 300 S.W. 913, 1927 Ky. LEXIS 939 ( Ky. 1927 ); Britton v. Marcum, 278 Ky. 138 , 128 S.W.2d 553, 1939 Ky. LEXIS 396 ( Ky. 1939 ).

This section had the effect of abolishing the distinction between sealed and unsealed written instruments. Deatley v. Phillips, 311 Ky. 698 , 225 S.W.2d 296, 1949 Ky. LEXIS 1228 ( Ky. 1949 ).

2. Applicability.

The statute allows the consideration, not the engagement, to be impeached. If the intent is to impeach the engagement, then that must be done, as of old, upon the ground either that the writing was executed or procured through fraud or mutual mistake of the parties in failing to correctly set out the engagement. Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ).

The exception to the parol evidence rule made possible by this section applies only to the “consideration” of a contract as distinguished from its subject matter. Apple v. McCullough, 239 Ky. 74 , 38 S.W.2d 955, 1931 Ky. LEXIS 729 ( Ky. 1931 ); Wilson v. Mitchell, 245 Ky. 55 , 53 S.W.2d 175, 1932 Ky. LEXIS 531 ( Ky. 1932 ); Sadler v. Carpenter, 251 S.W.2d 840, 1952 Ky. LEXIS 931 ( Ky. 1952 ).

As broad as this section is, it does not make inapplicable the law which disqualifies a witness having a pecuniary adverse interest from testifying concerning a verbal statement or transaction with one who is dead when the testimony is offered. Louisville & Jefferson County Metropolitan Sewer Dist. v. General Distillers Corp., 257 S.W.2d 543, 1953 Ky. LEXIS 784 ( Ky. 1953 ).

This section was not intended to repeal the parol evidence rule and, regardless of whether the provision would be applicable to contracts with or conveyances to the United States, federal and Kentucky law agree that the estate or interest passing to a grantee, where the instruments of transfer are free of uncertainty, cannot be contradicted by extrinsic evidence. Mason v. United States, 169 F. Supp. 507, 144 Ct. Cl. 579, 1959 U.S. Ct. Cl. LEXIS 45 (Ct. Cl. 1959).

3. Failure to Verify.

Omission to verify the pleading is waived unless objected to. Hite v. Reynolds, 163 Ky. 502 , 173 S.W. 1108, 1915 Ky. LEXIS 238 ( Ky. 1915 ); Vater v. Vater's Adm'rs, 272 Ky. 144 , 113 S.W.2d 1145, 1938 Ky. LEXIS 96 ( Ky. 1938 ) (decision prior to 1952 amendment).

Refusal of court to permit filing of unverified answer or to extend time for its verification is reversible error. Vater v. Vater's Adm'rs, 272 Ky. 144 , 113 S.W.2d 1145, 1938 Ky. LEXIS 96 ( Ky. 1938 ) (decision prior to 1952 amendment).

The issue of lack of verification should be raised by rule. Vater v. Vater's Adm'rs, 272 Ky. 144 , 113 S.W.2d 1145, 1938 Ky. LEXIS 96 ( Ky. 1938 ) (decision prior to 1952 amendment).

4. Contract for Sale of Land.

Where contract for sale of land specifically stated that consideration was a certain amount per acre and the deed was indefinite on the matter of consideration, the contract was controlling. Ford v. Coles, 278 Ky. 131 , 128 S.W.2d 609, 1939 Ky. LEXIS 412 ( Ky. 1939 ).

5. Deed.

Parol evidence is admissible to impeach the consideration of a deed, absolute on its face, and to show that it was intended to be a mortgage instead of a deed. Britton v. Marcum, 278 Ky. 138 , 128 S.W.2d 553, 1939 Ky. LEXIS 396 ( Ky. 1939 ).

Lack of consideration for a deed could not be proved by testimony as to statements made by grantor of deed, since deceased, since such statements would be self-serving. Head v. Head, 293 Ky. 371 , 169 S.W.2d 25, 1943 Ky. LEXIS 629 ( Ky. 1943 ).

Where deed conveying lumber company contained a provision that grantee would employ grantor at specified monthly wage, agreement for employment went to substantial part of consideration for conveyance and parol evidence that grantor was to be employed by grantee so long as grantor could work was admissible in action for cancellation of deed in order to ascertain true consideration. C. C. Leonard Lumber Co. v. Reed, 314 Ky. 703 , 236 S.W.2d 961, 1951 Ky. LEXIS 737 ( Ky. 1951 ).

6. Release.

Parol evidence is admissible to show that a written release was signed without knowledge of its contents or without intent to sign a release, or to show consideration. Drane v. Louisville R. Co., 279 Ky. 490 , 131 S.W.2d 439, 1939 Ky. LEXIS 303 ( Ky. 1939 ).

Parol evidence is not admissible to vary the terms of a written release from liability for personal injuries, acknowledging receipt of money as settlement in full, by proving that an additional consideration, not stated in the release, had been orally agreed upon, unless the instrument is attacked directly on the ground of fraud. Drane v. Louisville R. Co., 279 Ky. 490 , 131 S.W.2d 439, 1939 Ky. LEXIS 303 ( Ky. 1939 ).

7. Simple Receipt.

A simple receipt may be contradicted by parol evidence. Drane v. Louisville R. Co., 279 Ky. 490 , 131 S.W.2d 439, 1939 Ky. LEXIS 303 ( Ky. 1939 ).

8. Compromise and Settlement Agreement.

Party to compromise and settlement agreement could prove by parol evidence that consideration received by him was not in settlement of certain matters as to which no controversy existed, or which were not intended to be covered by settlement. Panke v. Collins-Moore & Co., 280 Ky. 701 , 134 S.W.2d 608, 1939 Ky. LEXIS 200 ( Ky. 1939 ).

9. Reformation.

It is not necessary to reform the instrument for mistake. Harshbarger v. Bryan, 232 Ky. 816 , 24 S.W.2d 601, 1929 Ky. LEXIS 454 ( Ky. 1929 ); McQueen v. Estridge, 251 Ky. 464 , 65 S.W.2d 454, 1933 Ky. LEXIS 894 ( Ky. 1933 ).

The consideration stated in an instrument may be questioned and the real consideration or the absence thereof shown without seeking a reformation, but it is doubtful that the terms of the instrument describing what the consideration purchased or what property was conveyed for the consideration may be modified without following the rules of equity demanded for a reformation. Fordson Coal Co. v. Garrard, 277 Ky. 218 , 125 S.W.2d 977, 1939 Ky. LEXIS 611 ( Ky. 1939 ).

The true consideration in a writing may be shown by parol, although reformation is not sought, and where an instrument acknowledged receipt of a consideration, it may be shown that there was none or that it was different than stated. Hazelwood v. Woodward, 277 Ky. 447 , 126 S.W.2d 857, 1939 Ky. LEXIS 677 ( Ky. 1939 ).

10. Oversight, Fraud or Mutual Mistake.

The evidence must show oversight, fraud or mutual mistake. Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ); Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ).

No allegation of fraud or mistake is necessary. Stamper v. Cornett, 121 S.W. 623 ( Ky. 1909 ); Turner v. Newberry, 166 Ky. 196 , 179 S.W. 23, 1915 Ky. LEXIS 659 ( Ky. 1915 ); Menser v. Lea, 176 Ky. 391 , 195 S.W. 813, 1917 Ky. LEXIS 64 ( Ky. 1917 ); Potter v. Baynes, 186 Ky. 489 , 217 S.W. 359, 1920 Ky. LEXIS 50 ( Ky. 1920 ); Robinson's Adm'r v. Alexander, 194 Ky. 494 , 239 S.W. 786, 1922 Ky. LEXIS 177 ( Ky. 1922 ); Huff v. Fuller, 197 Ky. 119 , 246 S.W. 149, 1922 Ky. LEXIS 632 ( Ky. 1922 ); Younce v. Duty, 205 Ky. 274 , 265 S.W. 776, 1924 Ky. LEXIS 91 ( Ky. 1924 ); Harshbarger v. Bryan, 232 Ky. 816 , 24 S.W.2d 601, 1929 Ky. LEXIS 454 ( Ky. 1929 ); McQueen v. Estridge, 251 Ky. 464 , 65 S.W.2d 454, 1933 Ky. LEXIS 894 ( Ky. 1933 ); McNeill's Adm'x v. Riley, 256 Ky. 170 , 75 S.W.2d 1068, 1934 Ky. LEXIS 382 ( Ky. 1934 ).

Under this section the real consideration for the execution of a written contract may be shown by parol without an allegation of fraud or mistake, but this does not mean that the consideration so shown may be made the basis of a recovery by one of the contracting parties where it consists of a collateral undertaking as distinguished from a mere variation of the consideration named in the instrument. Ashland Oil & Refining Co. v. Dorton, 300 Ky. 385 , 189 S.W.2d 394, 1945 Ky. LEXIS 558 ( Ky. 1945 ).

Where written agreement, reciting fact of development of an invention by first party while in second party’s employ, provided that “in consideration of the premises” the second party was authorized to use the invention in its business, the first party could not, in the absence of pleading and proof that the real consideration was omitted from the agreement by fraud or mistake, recover damages on claims that real consideration consisted of promise by second party to employ first party for life and to pay him reasonable compensation for use of invention. Ashland Oil & Refining Co. v. Dorton, 300 Ky. 385 , 189 S.W.2d 394, 1945 Ky. LEXIS 558 ( Ky. 1945 ).

The consideration for a written contract may be shown by oral proof without a charge of mistake or fraud. Deatley v. Phillips, 311 Ky. 698 , 225 S.W.2d 296, 1949 Ky. LEXIS 1228 ( Ky. 1949 ); Commonwealth, Dep't of Highways v. Schmehr, 388 S.W.2d 131, 1965 Ky. LEXIS 417 ( Ky. 1965 ).

11. Evidence.

The real consideration of a writing could be shown by parol evidence, though it contradicted the writing. (Decided under prior law) Trumbo v. Curtright, 8 Ky. 582 , 1819 Ky. LEXIS 91 ( Ky. 1819 ); Burdit's Ex'rs v. Burdit & Tatum, 9 Ky. 143 , 1819 Ky. LEXIS 190 ( Ky. 1819 ); Gully v. Grubbs, 24 Ky. 387 , 1829 Ky. LEXIS 297 ( Ky. 1829 ); Gordon's Heirs v. Gordon, 58 Ky. 285 , 1858 Ky. LEXIS 49 ( Ky. 1858 ); Bourne v. Bourne, 92 Ky. 211 , 17 S.W. 443, 13 Ky. L. Rptr. 545 , 1891 Ky. LEXIS 145 ( Ky. 1891 ); Louisville S. L. & T. R. Co. v. Neafus, 93 Ky. 53 , 18 S.W. 1030, 13 Ky. L. Rptr. 951 , 1892 Ky. LEXIS 51 ( Ky. 1892 ), overruled, Louisville, A. & P. V. E. R. Co. v. Whipps, 118 Ky. 121 , 80 S.W. 507, 25 Ky. L. Rptr. 2312 , 1904 Ky. LEXIS 18 ( Ky. 1904 ).

The real consideration of a writing may be shown by parol evidence, though it contradicts the writing. Price's Adm'x v. Price's Adm'x, 111 Ky. 77 1 , 64 S.W. 746, 1901 Ky. LEXIS 256 ( Ky. 1901 ); Neurenberger v. Lehenbauer, 66 S.W. 15, 23 Ky. L. Rptr. 1753 (1902); Continental Casualty Co. v. Jasper, 121 Ky. 77 , 88 S.W. 1078, 28 Ky. L. Rptr. 53 , 1905 Ky. LEXIS 181 ( Ky. 1905 ); Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ); Lincks v. Lincks, 141 Ky. 627 , 133 S.W. 566, 1911 Ky. LEXIS 61 ( Ky. 1911 ); Campbell v. Offutt, 151 Ky. 229 , 151 S.W. 403, 1912 Ky. LEXIS 782 ( Ky. 1912 ); Hite v. Reynolds, 163 Ky. 502 , 173 S.W. 1108, 1915 Ky. LEXIS 238 ( Ky. 1915 ); Short's Adm'x v. Reserve Loan Life Ins. Co., 175 Ky. 554 , 194 S.W. 773, 1917 Ky. LEXIS 354 ( Ky. 1917 ); Potter v. Baynes, 186 Ky. 489 , 217 S.W. 359, 1920 Ky. LEXIS 50 ( Ky. 1920 ); Robinson's Adm'r v. Alexander, 194 Ky. 494 , 239 S.W. 786, 1922 Ky. LEXIS 177 ( Ky. 1922 ); Steele v. Hinkle, 205 Ky. 408 , 265 S.W. 931, 1924 Ky. LEXIS 125 ( Ky. 1924 ); Newton v. Newton's Adm'r, 214 Ky. 278 , 283 S.W. 83, 1926 Ky. LEXIS 318 ( Ky. 1926 ); O'Neal v. Turney's Ex'x, 222 Ky. 361 , 300 S.W. 913, 1927 Ky. LEXIS 939 ( Ky. 1927 ); Holbrook v. Letcher County, 223 Ky. 597 , 4 S.W.2d 382, 1928 Ky. LEXIS 390 ( Ky. 1928 ); Jones v. Riddell, 224 Ky. 245 , 5 S.W.2d 1077, 1928 Ky. LEXIS 573 ( Ky. 1928 ); Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ); Harshbarger v. Bryan, 232 Ky. 816 , 24 S.W.2d 601, 1929 Ky. LEXIS 454 ( Ky. 1929 ); Piney Oil & Gas Co. v. Allen, 235 Ky. 767 , 32 S.W.2d 325, 1930 Ky. LEXIS 456 ( Ky. 1930 ); Apple v. McCullough, 239 Ky. 74 , 38 S.W.2d 955, 1931 Ky. LEXIS 729 ( Ky. 1931 ); Beaver Dam Coal Co. v. Brashear, 246 Ky. 69 , 54 S.W.2d 609, 1932 Ky. LEXIS 707 ( Ky. 1932 ); McQueen v. Estridge, 251 Ky. 464 , 65 S.W.2d 454, 1933 Ky. LEXIS 894 ( Ky. 1933 ); McNeill's Adm'x v. Riley, 256 Ky. 170 , 75 S.W.2d 1068, 1934 Ky. LEXIS 382 ( Ky. 1934 ); Allen v. McIntosh, 276 Ky. 751 , 125 S.W.2d 234, 1939 Ky. LEXIS 580 ( Ky. 1939 ); Fontana v. Fontana, 237 S.W.2d 844, 1951 Ky. LEXIS 780 ( Ky. 1951 ).

The evidence offered to impeach the consideration of a writing must be clear and convincing. Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ); Lincks v. Lincks, 141 Ky. 627 , 133 S.W. 566, 1911 Ky. LEXIS 61 ( Ky. 1911 ); Farmers' Bank of West Louisville v. Birk, 179 Ky. 761 , 201 S.W. 315, 1918 Ky. LEXIS 289 ( Ky. 1918 ); Vernon v. Vernon, 211 Ky. 196 , 277 S.W. 248, 1925 Ky. LEXIS 844 ( Ky. 1925 ); Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ); Harshbarger v. Bryan, 232 Ky. 816 , 24 S.W.2d 601, 1929 Ky. LEXIS 454 ( Ky. 1929 ); Britton v. Marcum, 278 Ky. 138 , 128 S.W.2d 553, 1939 Ky. LEXIS 396 ( Ky. 1939 ).

Recitals of consideration may be impeached or explained by parol evidence. Panke v. Collins-Moore & Co., 280 Ky. 701 , 134 S.W.2d 608, 1939 Ky. LEXIS 200 ( Ky. 1939 ).

The true consideration for a written contract, vis-`-vis that recited in the document, is generally admissible despite the parol-evidence rule, unless the recital of consideration is “contractual.” Texas Gas Transmission Corp. v. Kinslow, 461 S.W.2d 69, 1970 Ky. LEXIS 602 ( Ky. 1970 ).

12. Burden of Proof.

The burden on the issue of consideration was on the one denying or impeaching it. (decided under prior law) Rudd v. Hanna, 20 Ky. 528 , 1827 Ky. LEXIS 78 ( Ky. 1827 ).; Taylor v. Ashby, 25 Ky. 415 , 1829 Ky. LEXIS 117 ( Ky. 1829 ); Andrews v. Hayden's Adm'rs, 88 Ky. 455 , 11 S.W. 428, 10 Ky. L. Rptr. 1049 , 1889 Ky. LEXIS 55 ( Ky. 1889 ).

The burden on the issue of consideration is on the one denying or impeaching it. Brann v. Brann, 44 S.W. 424, 19 Ky. L. Rptr. 1814 (1898); Kiesewetter v. Kress, 68 S.W. 633, 24 Ky. L. Rptr. 405 , 1902 Ky. LEXIS 303 (Ky. Ct. App.), superseded, 70 S.W. 1065, 24 Ky. L. Rptr. 1239 (1902); Combs v. Combs, 130 Ky. 827 , 114 S.W. 334, 1908 Ky. LEXIS 328 ( Ky. 1908 ); Bronston's Adm'r v. Lakes, 135 Ky. 173 , 121 S.W. 1021, 1909 Ky. LEXIS 271 ( Ky. 1909 ); Menser v. Lea, 176 Ky. 391 , 195 S.W. 813, 1917 Ky. LEXIS 64 ( Ky. 1917 ); Vernon v. Vernon, 211 Ky. 196 , 277 S.W. 248, 1925 Ky. LEXIS 844 ( Ky. 1925 ).

A plea of lack of consideration places the burden of proof on the party making the plea. Simpson v. Simpson, 276 Ky. 223 , 123 S.W.2d 816, 1938 Ky. LEXIS 547 ( Ky. 1938 ).

Although the true consideration of a deed may be shown by parol evidence, the recitation in a deed of a stipulated consideration is prima facie evidence of its correctness, and the burden of proof to establish that the consideration was otherwise is upon the party who so claims. Head v. Head, 293 Ky. 371 , 169 S.W.2d 25, 1943 Ky. LEXIS 629 ( Ky. 1943 ).

Party denying consideration has burden of proof. Potter v. Potter's Ex'r, 293 Ky. 606 , 169 S.W.2d 818, 1943 Ky. LEXIS 673 ( Ky. 1943 ).

13. — Presumption of Sufficient Consideration.

Recitation in stock options that there was “one dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged” created a presumption of sufficient consideration which was rebuttable under this section by clear and convincing evidence. Kincaid v. Central Bank & Trust Co., 612 S.W.2d 342, 1980 Ky. App. LEXIS 418 (Ky. Ct. App. 1980).

14. Defense Against Infant.

This defense may be pleaded against an infant as well as against an adult. Younce v. Duty, 205 Ky. 274 , 265 S.W. 776, 1924 Ky. LEXIS 91 ( Ky. 1924 ).

Cited:

Sheffer v. Chromalloy Mining & Mineral Div. of Chromalloy American Corp., 578 S.W.2d 594, 1979 Ky. App. LEXIS 383 (Ky. Ct. App. 1979); Risner v. McCarty, 2019 Ky. App. LEXIS 145 (Ky. Ct. App. Aug. 9, 2019).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

371.040. Bonds, bills and notes assignable — Effect of assignment.

All bonds, bills or notes for money or property are assignable so as to vest the right of action in the assignee; but, except in the case of negotiable instruments, the assignment shall not impair the right to any defense, discount or set-off that the defendant has and might have used against the original obligee, or any intermediate assignor, before the defendant received notice of the assignment.

History. 474.

NOTES TO DECISIONS

1. Applicability.

The first clause applies to all bonds, bills and notes. The second clause applies to all but bills of exchange or paper put on the footing of bills of exchange. The word “assignable” is used in the sense of “transferable.” Ritchie v. Cralle, 108 Ky. 483 , 56 S.W. 963 ( Ky. 1900 ).

2. Assignable at Law.

A covenant for money or property was not legally assignable at law unless the assignment would entitle assignee to demand and receive the thing covenanted to be paid, and would divest the assignor of his right to claim it. (decided under prior law) Boyd v. Rumsey, 28 Ky. 42 , 1830 Ky. LEXIS 368 ( Ky. 1830 ).

Covenant to pay a specified sum in matured promissory notes was assignable at law. (decided under prior law) Sirlott v. Tandy, 33 Ky. 142 , 1835 Ky. LEXIS 51 ( Ky. 1835 ).

If the nonnegotiable note was lost, stolen or misappropriated, the owner could recover it from a finder or his purchasers. (decided under prior law) Prather v. Weissiger, 73 Ky. 117 , 1873 Ky. LEXIS 62 ( Ky. 1873 ).

A contract providing that vendor should convey land and that payment therefor should be made out of collateral security is assignable at law. Baker v. Smith, 61 S.W. 1014, 22 Ky. L. Rptr. 1878 , 1901 Ky. LEXIS 646 (Ky. Ct. App. 1901).

A municipal warrant is assignable at law. Hardin v. Highland Park, 144 Ky. 489 , 139 S.W. 765, 1911 Ky. LEXIS 656 ( Ky. 1911 ).

3. — Bonds.

Title bonds were assignable at law. (decided under prior law) Conn v. Jones, 3 Ky. 8 ( Ky. 1805 ); Neyfong v. Wells, 3 Ky. 561 ( Ky. 1808 ); Anderson's Adm'r v. Wells, 45 Ky. 540 , 1846 Ky. LEXIS 58 ( Ky. 1846 ); Taylor v. Ford, 64 Ky. 44 , 1866 Ky. LEXIS 82 ( Ky. 1866 ).

An assignment of an indemnification against loss is a bond and is assignable at law but an assignment is only necessary when the guaranty is to an original obligee other than the party suing. Louisville, N. A. & C. R. Co. v. Ohio Valley Improv. & Contract Co., 69 F. 431, 1894 U.S. App. LEXIS 3164 (C.C.D. Ky. 1894 ), rev'd, 75 F. 433, 1896 U.S. App. LEXIS 2048 (6th Cir. Ky. 1896 ); Louisville Trust Co. v. Louisville, N. A. & C. R. Co., 75 F. 433, 1896 U.S. App. LEXIS 2048 (6th Cir. Ky. 1896 ), modified, 174 U.S. 552, 19 S. Ct. 817, 43 L. Ed. 1081, 1899 U.S. LEXIS 1518 (U.S. 1899).

Title bonds are assignable at law. Evans v. Stratton, 142 Ky. 615 , 134 S.W. 1154, 1911 Ky. LEXIS 269 ( Ky. 1911 ).

An indemnification against loss is a bond, and is assignable at law. Rogers v. Harvey, 143 Ky. 88 , 136 S.W. 128, 1911 Ky. LEXIS 338 ( Ky. 1911 ); McGowan v. Wells' Trustee, 184 Ky. 772 , 213 S.W. 573, 1919 Ky. LEXIS 142 ( Ky. 1919 ).

Corporate mortgage bonds are assignable at law. Gayle v. Greasy Creek Coal & Land Co., 249 Ky. 251 , 60 S.W.2d 599, 1932 Ky. LEXIS 888 ( Ky. 1932 ).

4. — Nonnegotiable Notes.

Indorsement and delivery of a note as collateral passes title. Levy v. Rudolph, 56 S.W. 988, 22 Ky. L. Rptr. 258 , 1900 Ky. LEXIS 611 ( Ky. 1900 ).

A nonnegotiable note is assignable at law. Cunningham v. Potter, 64 S.W. 493, 23 Ky. L. Rptr. 847 (1901); Crews v. Yowell, 76 S.W. 127, 25 Ky. L. Rptr. 598 (1903).

The assignee of a note assignable under this section is the proper party to file suit thereon. Gladstone Baptist Church v. Scott, 74 S.W. 1075, 25 Ky. L. Rptr. 237 (1903).

A note containing a covenant to insure property was assignable under this section. P. A. Starck Piano Co. v. Hardin, 250 Ky. 669 , 63 S.W.2d 795, 1933 Ky. LEXIS 752 ( Ky. 1933 ).

5. — Liens.

The assignment of a debt carried with it all liens collateral and incident to it. (decided under prior law) Kenny v. Collins, 14 Ky. 289 , 1823 Ky. LEXIS 190 ( Ky. 1823 ); JOHNSTON v. GWATHMEY, 14 Ky. 317 , 1823 Ky. LEXIS 199 (Ky. Ct. App. 1823); Edwards v. Bohannon, 32 Ky. 98 , 1834 Ky. LEXIS 26 ( Ky. 1834 ); Eubank v. Poston, 21 Ky. 285 , 1827 Ky. LEXIS 155 ( Ky. 1827 ), limited, Broadwell v. King, 42 Ky. 449 , 1843 Ky. LEXIS 4 7 ( Ky. 1843 ); Honore's Ex'r v. Bakewell, 45 Ky. 67 , 1845 Ky. LEXIS 78 ( Ky. 1845 ); Vimont v. Stitt, 45 Ky. 474 , 1846 Ky. LEXIS 38 ( Ky. 1846 ); Burdett v. Clay, 47 Ky. 287 , 1847 Ky. LEXIS 170 ( Ky. 1847 ); Ripperdon v. Cozine, 47 Ky. 465 , 1848 Ky. LEXIS 110 ( Ky. 1848 ); Willis v. Vallette, 61 Ky. 186 , 1862 Ky. LEXIS 4 4 ( Ky. 186 2 ); Lusk v. Hopper, 66 Ky. 179 , 1867 Ky. LEXIS 159 ( Ky. 1867 ); Forwood v. Dehoney, 68 Ky. 174 , 1868 Ky. LEXIS 240 ( Ky. 1868 ); Duncan v. Louisville, 76 Ky. 378 , 1877 Ky. LEXIS 71 ( Ky. 1877 ); Summers v. Kilgus, 77 Ky. 449 , 1879 Ky. LEXIS 4 ( Ky. 1879 ).

When several obligations were secured by one lien, an assignment of a portion of them operated to transfer the lien pro tanto. (decided under prior law) M'Clanahan, Field & Co. v. Chambers, 17 Ky. 43 , 1824 Ky. LEXIS 133 ( Ky. 1824 ); Summers v. Kilgus, 77 Ky. 449 , 1879 Ky. LEXIS 4 ( Ky. 1879 ).

An assignor of a title bond had a lien for the purchase price against his assignee. (decided under prior law) Wiseman's Heirs v. Reed, 30 Ky. 249 , 1832 Ky. LEXIS 55 ( Ky. 1832 ).

An assignor of a title bond had a lien for the purchase price against remote vendees but the assignor must have paid his own vendor in full. (decided under prior law) Ligon v. Alexander, 30 Ky. 288 , 1832 Ky. LEXIS 77 ( Ky. 1832 ).

An innocent purchaser for value took free of the lien for the purchase price. (decided under prior law) Anderson's Adm'r v. Wells, 45 Ky. 540 , 1846 Ky. LEXIS 58 ( Ky. 1846 ).

The assignor must state in the assignment of a title bond the amount of purchase money remaining unpaid. (decided under prior law) Taylor v. Ford, 64 Ky. 44 , 1866 Ky. LEXIS 82 ( Ky. 1866 ).

The assignor of a purchase money note for land had authority to release the lien of record if no record of the assignment had been made. (decided under prior law) Summers v. Kilgus, 77 Ky. 449 , 1879 Ky. LEXIS 4 ( Ky. 1879 ).

The assignor of a purchase money note for land has authority to release the lien of record if no record of the assignment has been made. Mutual Life Ins. Co. v. Hall, 50 S.W. 254, 20 Ky. L. Rptr. 1880 (1899).

The assignment of a debt carries with it all liens collateral and incident to it. Cincinnati Tobacco Warehouse Co. v. Leslie & Whitaker's Trustees, 117 Ky. 478 , 78 S.W. 413, 25 Ky. L. Rptr. 1570 , 1904 Ky. LEXIS 211 ( Ky. 1904 ); McGowan v. Wells' Trustee, 184 Ky. 772 , 213 S.W. 573, 1919 Ky. LEXIS 142 ( Ky. 1919 ); Securities Inv. Co. v. Harrod Bros., 225 Ky. 12 , 7 S.W.2d 492, 1928 Ky. LEXIS 692 ( Ky. 1928 ).

An assignment of a debt carries with it all securities collateral and incident to it. McGowan v. Wells' Trustee, 184 Ky. 772 , 213 S.W. 573, 1919 Ky. LEXIS 142 ( Ky. 1919 ).

6. — Partial Assignment.

After part payment of a note, the holder could assign legal title to the balance remaining due. (decided under prior law) Bledsoe v. Fisher, 5 Ky. 471 , 1811 Ky. LEXIS 106 ( Ky. 1811 ).

A partial assignment of a debt passed only an equitable title to the assignee, the assignor holding the legal title in trust for the assignee to the extent of the latter’s interest. And when the balance due after the first assignment was assigned to still another, the assignor also held legal title in trust for the second assignee to the extent of his interest, unless the assignment made manifest a contrary intent, in which event the second assignee acquired legal title for himself and in trust for the first assignee. (decided under prior law) Elledge v. Straughn, 41 Ky. 81 , 1841 Ky. LEXIS 94 ( Ky. 1841 ); Bank of Galliopolis v. Trimble, 45 Ky. 599 , 1846 Ky. LEXIS 74 ( Ky. 1846 ).

An assignment by an assignee to his coassignee did not confer legal title to the latter, but an assignment in their firm name did. (decided under prior law) Mardis v. Tyler, 49 Ky. 376 , 1850 Ky. LEXIS 113 ( Ky. 1850 ).

A partial assignment of a debt passed only an equitable title to the assignee unless the assignor consented. (decided under prior law) Weinstock v. Bellwood, 75 Ky. 139 , 1876 Ky. LEXIS 48 ( Ky. 1876 ).

7. Obligations Assignable in Equity Only.

The assignor of an equity was not liable to his assignee upon the obligor’s insolvency unless he expressly assumed such liability. (decided under prior law) Smallwood v. Woods, 4 Ky. 542 , 1809 Ky. LEXIS 139 ( Ky. 1809 ); Robinson's Adm'x v. White, 14 Ky. 237 , 1823 Ky. LEXIS 167 ( Ky. 1823 ); Crawford v. Duncan, 6 Ky. L. Rptr. 734 , 7 Ky. L. Rptr. 134 .

A contract containing mutual covenants was not assignable at law. (decided under prior law) Bowman v. Frowman, 5 Ky. 233 , 1810 Ky. LEXIS 102 ( Ky. 1810 ); Craig v. Miller, 6 Ky. 440 , 1814 Ky. LEXIS 93 ( Ky. 1814 ).

The assignee of an obligation not assignable by law had to join the assignor as a party plaintiff or defendant. Both were necessary parties. (decided under prior law) Allen v. Crockett, 7 Ky. 240 , 1815 Ky. LEXIS 131 ( Ky. 1815 ); Snelling v. Boyd, 21 Ky. 172 , 1827 Ky. LEXIS 125 ( Ky. 1827 ); Elliott v. Waring, 21 Ky. 338 , 1827 Ky. LEXIS 160 ( Ky. 1827 ); Harrison v. Burgess, 21 Ky. 417 , 1827 Ky. LEXIS 184 (Ky. 1827); Young v. Rodes, 21 Ky. 498 , 1827 Ky. LEXIS 195 (Ky. 1827); Gill v. Johnson's Adm'rs, 58 Ky. 649 , 1859 Ky. LEXIS 34 ( Ky. 1859 ); Lytle v. Lytle, 59 Ky. 127 , 1859 Ky. LEXIS 64 ( Ky. 1859 ); Hicks & Gill v. Doty, 67 Ky. 420 , 1868 Ky. LEXIS 155 ( Ky. 1868 ).

A judgment was not assignable. Only an equity therein passed to the assignee. (decided under prior law) Millar v. Field, 10 Ky. 104 , 1820 Ky. LEXIS 191 ( Ky. 1820 ); Robinson's Adm'x v. White, 14 Ky. 237 , 1823 Ky. LEXIS 167 ( Ky. 1823 ); Elliott v. Waring, 21 Ky. 338 , 1827 Ky. LEXIS 160 ( Ky. 1827 ); Crawford v. Duncan, 6 Ky. L. Rptr. 734 , 7 Ky. L. Rptr. 134 .

An agreement to collect and account for money was not assignable at law. (decided under prior law) Force's Adm'r v. Thomason, 12 Ky. 166 , 1822 Ky. LEXIS 198 ( Ky. 1822 ).

A writing calling for some personal service or abstention was not assignable at law even though one of its covenants was for the payment of money or property. (decided under prior law) Force's Adm'r v. Thomason, 12 Ky. 1 66, 1822 Ky. LEXIS 1 98 ( Ky. 1 822); HALRERT v. DEERING, 14 Ky. 9 , 1823 Ky. LEXIS 1 22 (Ky. Ct. App. 1823); Boyd v. Rumsey, 28 Ky. 42 , 1830 Ky. LEXIS 368 ( Ky. 1830 ); Marcum v. Hereford, 38 Ky. 1, 1839 Ky. LEXIS 1 ( Ky. 1839 ); Hicks & Gill v. Doty, 67 Ky. 42 0 , 1868 Ky. LEXIS 155 ( Ky. 1868 ); Helburn & Co. v. Mofford, 70 Ky. 169 , 1870 Ky. LEXIS 24 ( Ky. 1870 ).

A writing calling for some personal service or abstention was not assignable at law. (decided under prior law) Henry v. Hughes, 24 Ky. 453 , 1829 Ky. LEXIS 315 ( Ky. 1829 ).

The right to reclaim usury was assignable in equity. (decided under prior law) Breckenridge v. Churchill, 26 Ky. 11 , 1829 Ky. LEXIS 162 ( Ky. 1829 ).

The right to reclaim usury was assignable in equity but a mortgage of all of claimant’s property, legal and equitable, did not operate as an assignment of the right to reclaim. (decided under prior law) Breckenridge v. Churchill, 26 Ky. 11 , 1829 Ky. LEXIS 162 ( Ky. 1829 ).

Covenants to return or maintain property or to pay taxes upon it were not assignable at law. (decided under prior law) Boyd v. Rumsey, 28 Ky. 42 , 1830 Ky. LEXIS 368 ( Ky. 1830 ).

A replevin bond was not assignable at law. (decided under prior law) Anderson v. Bradford, 28 Ky. 69 , 1830 Ky. LEXIS 382 ( Ky. 1830 ); Crawford v. Duncan, 6 Ky. L. Rptr. 734 , 7 Ky. L. Rptr. 134 .

A supersedeas bond was not assignable at law. (decided under prior law) Yantes v. Smith, 51 Ky. 395 , 1851 Ky. LEXIS 81 ( Ky. 1851 ).

An account was assignable in equity. (decided under prior law) Forepaugh v. Appold & Sons, 57 Ky. 625 (1856); Crawford v. Duncan, 6 Ky. L. Rptr. 734 , 7 Ky. L. Rptr. 134 .

An agreement to pay rent coupled with agreement to make repairs was not assignable at law. (decided under prior law) Hicks & Gill v. Doty, 67 Ky. 420 , 1868 Ky. LEXIS 155 ( Ky. 1868 ).

Future wages under an existing contract were assignable in equity. (decided under prior law) Manly v. Bitzer, 91 Ky. 596 , 16 S.W. 464, 13 Ky. L. Rptr. 166 , 1891 Ky. LEXIS 95 ( Ky. 1891 ), overruled, Holt v. Thurman, 111 Ky. 84 , 63 S.W. 280, 23 Ky. L. Rptr. 92 , 1901 Ky. LEXIS 179 ( Ky. 1901 ).

The right to reclaim usury is assignable in equity. Louisville Trust Co. v. Ky. Nat. Bank, 102 F. 442, 1900 U.S. App. LEXIS 5219 (C.C.D. Ky. 1900 ).

A parol assignment is equitable only. Crews v. Yowell, 76 S.W. 127, 25 Ky. L. Rptr. 598 (1903).

The pledgee of a chose in action may sue and collect same, and use the name of his assignor. Crews v. Yowell, 76 S.W. 127, 25 Ky. L. Rptr. 598 (1903).

An account is assignable in equity. Columbia Finance & Trust Co. v. First Nat'l Bank, 116 Ky. 364 , 76 S.W. 156, 25 Ky. L. Rptr. 561 , 1903 Ky. LEXIS 202 ( Ky. 1903 ); Dejarnett v. Tutt, 230 Ky. 99 , 18 S.W.2d 968, 1929 Ky. LEXIS 39 ( Ky. 1929 ).

A judgment is not assignable under this section. Only an equity therein passes to the assignee. Brown & Bro. v. Lapp, 89 S.W. 304, 28 Ky. L. Rptr. 409 (1905); Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 ( Ky. 1929 ); Turner v. Gambill, 275 Ky. 330 , 121 S.W.2d 705, 1938 Ky. LEXIS 423 ( Ky. 1938 ).

A fund in court is assignable in equity. Lexington Brewing Co. v. Hamon, 155 Ky. 711 , 160 S.W. 264, 1913 Ky. LEXIS 334 ( Ky. 1913 ); Haydon v. Eldred, 231 Ky. 298 , 21 S.W.2d 457, 1929 Ky. LEXIS 273 ( Ky. 1929 ).

A contract for the purchase and installation of machinery is not assignable at law. Builders' Duntile Co. v. W. E. Dunn Mfg. Co., 229 Ky. 569 , 17 S.W.2d 715, 1929 Ky. LEXIS 806 ( Ky. 1929 ).

The assignee of an obligation not assignable by law must join the assignor as a party plaintiff or defendant. Both are necessary parties. Builders' Duntile Co. v. W. E. Dunn Mfg. Co., 229 Ky. 569 , 17 S.W.2d 715, 1929 Ky. LEXIS 806 ( Ky. 1929 ); Dejarnett v. Tutt, 230 Ky. 99 , 18 S.W.2d 968, 1929 Ky. LEXIS 39 ( Ky. 1929 ); Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 (Ky. 1929); Haydon v. Eldred, 231 Ky. 298 , 21 S.W.2d 457, 1929 Ky. LEXIS 273 (Ky. 1929).

A replevin bond is not assignable at law. Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 ( Ky. 1929 ).

Things not covered by this section are assignable in equity. Haydon v. Eldred, 231 Ky. 298 , 21 S.W.2d 457, 1929 Ky. LEXIS 273 ( Ky. 1929 ).

A nonnegotiable note containing a covenant other than for payment of money or property is not assignable at law. P. A. Starck Piano Co. v. Hardin, 250 Ky. 669 , 63 S.W.2d 795, 1933 Ky. LEXIS 752 ( Ky. 1933 ).

8. Defenses Available Against Assignee.
9. — By Obligor.

The obligor was entitled to every defense against the assignee which would avail against the obligee before notice of the assignment. (decided under prior law) Rennick v. Hendricks, 7 Ky. 303 , 1816 Ky. LEXIS 22 ( Ky. 1816 ); Chiles v. Corn, 10 Ky. (3 A. K. Marsh.) 230, 1821 Ky. LEXIS 90 (1821); Ridgway v. Collins, 10 Ky. (3 A. K. Marsh.) 410, 1821 Ky. LEXIS 16 5 (1821); Thompson v. Moore, 29 Ky. (4 T. B. Mon.) 79 (1826); Hunt v. Brand's Heirs, 44 Ky. 562 , 1845 Ky. LEXIS 55 ( Ky. 1845 ); True v. Triplett, 61 Ky. 57 , 1862 Ky. LEXIS 16 ( Ky. 1862 ); Day v. Billingsly, 66 Ky. 157 , 1867 Ky. LEXIS 151 ( Ky. 1867 ); Prather v. Weissiger, 73 Ky. 117 , 1873 Ky. LEXIS 62 ( Ky. 1873 ); Garrott v. Jaffray & Co., 73 Ky. 413 , 1874 Ky. LEXIS 67 ( Ky. 1874 ).

The obligor, in an action by an assignee, could plead setoff only if said right existed and was due at the time of the assignment. (decided under prior law) Robbins v. Holley, 17 Ky. 191 , 1824 Ky. LEXIS 185 ( Ky. 1824 ); Markham v. Todd, 25 Ky. 364 , 1829 Ky. LEXIS 102 ( Ky. 1829 ); Bank of Galliopolis v. Trimble, 45 Ky. 599 , 1846 Ky. LEXIS 74 ( Ky. 1846 ); Graham v. Tilford & Barkley, 58 Ky. 112 , 1858 Ky. LEXIS 23 ( Ky. 1858 ); Walker v. McKay, 59 Ky. 294 , 1859 Ky. LEXIS 101 ( Ky. 1859 ).

The obligor could plead against the assignee that the note was given as a part of a gaming transaction. (decided under prior law) Thompson v. Moore, 20 Ky. 79 , 1826 Ky. LEXIS 121 ( Ky. 1826 ).

Payments made to obligee before notice of assignment were proper items of defense by obligor in action by assignee. (decided under prior law) Harrison v. Burgess, 21 Ky. 417 , 1827 Ky. LEXIS 184 ( Ky. 1827 ); Clark v. Boyd, 22 Ky. 293 , 1827 Ky. LEXIS 280 ( Ky. 1827 ); Gibson v. Pew, 26 Ky. 222 , 1830 Ky. LEXIS 25 ( Ky. 1830 ); True v. Triplett, 61 Ky. 57 , 1862 Ky. LEXIS 16 ( Ky. 1862 ).

The assignment of a note to be used as a setoff, assignee to account for proceeds thus realized and then return the note, was upheld if only the rights of obligor were involved; otherwise not. (decided under prior law) Otwell v. Cook, 48 Ky. 357 , 1849 Ky. LEXIS 60 ( Ky. 1849 ); Graham v. Tilford & Barkley, 58 Ky. 112 , 1858 Ky. LEXIS 23 ( Ky. 1858 ); Tinly v. Martin, 80 Ky. 463 , 4 Ky. L. Rptr. 327 , 1882 Ky. LEXIS 88 ( Ky. 1882 ).

The payor had a legal right at law to plead as against the assignee that the note contained usury. (decided under prior law) True v. Triplett, 61 Ky. 57 , 1862 Ky. LEXIS 16 ( Ky. 1862 ).

The obligor could not plead against the assignee that the note was obtained by fraud, notwithstanding the execution of a contemporaneous writing denying the existence of any defenses. (decided under prior law) Wells v. Lewis, 61 Ky. 269 , 1863 Ky. LEXIS 56 ( Ky. 1863 ); Crabtree v. Atchison, 93 Ky. 338 , 20 S.W. 260, 14 Ky. L. Rptr. 313 , 1892 Ky. LEXIS 94 ( Ky. 1892 ).

Notwithstanding the execution of a contemporaneous writing denying the existence of any defenses, the obligor could plead against the assignee that the note was given as a part of a gaming transaction. (decided under prior law) Pace & Young v. Martin, 63 Ky. 522 , 1866 Ky. LEXIS 46 ( Ky. 1866 ).

The obligor may plead against the assignee that the note was obtained by fraud, notwithstanding the execution of a contemporaneous writing denying the existence of any defenses. Hill v. Thixton, 94 Ky. 96 , 23 S.W. 947, 14 Ky. L. Rptr. 900 , 1893 Ky. LEXIS 112 ( Ky. 1893 ); Louisville Ins. Co. v. Hoffman, 50 S.W. 979, 20 Ky. L. Rptr. 2016 (1899).

Payments made to obligee before notice of assignment are proper items of defense by obligor in action by assignee. Mutual Life Ins. Co. v. Hall, 50 S.W. 254, 20 Ky. L. Rptr. 1880 (1899).

The obligor is entitled to every defense against the assignee which would avail against the obligee before notice of the assignment. Ritchie v. Cralle, 108 Ky. 483 , 56 S.W. 963 ( Ky. 1900 ); Columbia Finance & Trust Co. v. First Nat'l Bank, 116 Ky. 364 , 76 S.W. 156, 25 Ky. L. Rptr. 561 , 1903 Ky. LEXIS 202 ( Ky. 1903 ); Harrigan v. Advance Thresher Co., 81 S.W. 261, 26 Ky. L. Rptr. 317 (1904); Wettlaufer v. Baxter, 137 Ky. 362 , 125 S.W. 741, 1910 Ky. LEXIS 579 ( Ky. 1910 ); Pensacola State Bank v. Melton, 210 F. 57, 1913 U.S. Dist. LEXIS 1024 (D. Ky. 1913 ); Haggard v. Mutual Oil & Refining Co., 204 Ky. 209 , 263 S.W. 745, 1924 Ky. LEXIS 429 ( Ky. 1924 ); Fields' Adm'r v. Perry County State Bank, 214 Ky. 24 , 282 S.W. 555, 1926 Ky. LEXIS 260 ( Ky. 1926 ); Owings v. Rider, 241 Ky. 750 , 241 Ky. 756 , 45 S.W.2d 487, 1931 Ky. LEXIS 165 ( Ky. 1931 ); Anglo-American Mill Co. v. Kentucky Bank & Trust Co., 243 Ky. 124 , 47 S.W.2d 951, 1932 Ky. LEXIS 40 ( Ky. 1932 ); Justice v. Burgess, 244 Ky. 774 , 52 S.W.2d 720, 1932 Ky. LEXIS 514 ( Ky. 1932 ); Louisa Nat'l Bank v. Paintsville Nat'l Bank, 260 Ky. 327 , 85 S.W.2d 668, 1935 Ky. LEXIS 462 ( Ky. 1935 ).

The obligor may plead a counterclaim. Union Bank & Trust Co. v. Ford, 101 S.W. 347, 31 Ky. L. Rptr. 8 (1907).

An obligor cannot plead that the assignment was without consideration. Worden v. Kennedy, 246 Ky. 716 , 56 S.W.2d 329, 1933 Ky. LEXIS 12 ( Ky. 1933 ).

The obligor, in an action by an assignee, can plead setoff only if said right existed and was due at the time of the assignment. Louisa Nat'l Bank v. Paintsville Nat'l Bank, 260 Ky. 327 , 85 S.W.2d 668, 1935 Ky. LEXIS 462 ( Ky. 1935 ).

10. — By Surety.

A surety had no right of setoff until he had paid money for his principal. (decided under prior law) Walker v. McKay, 59 Ky. 294 , 1859 Ky. LEXIS 101 ( Ky. 1859 ).

A guarantor of a note was liable when the obligor failed to pay or within a reasonable time thereafter, and could not plead lack of diligence by assignee. (decided under prior law) Yeates v. Walker, 62 Ky. 84 , 1863 Ky. LEXIS 27 ( Ky. 1863 ).

A surety signing for the accommodation of both the principal obligor and the obligee could plead lack of consideration in a suit by the obligee. (decided under prior law) Day v. Billingsly, 66 Ky. 157 , 1867 Ky. LEXIS 151 ( Ky. 1867 ).

It was not necessary for a surety to plead or prove that the assignor knew him to be surety instead of principal. (decided under prior law) Day v. Billingsly, 66 Ky. 157 , 1867 Ky. LEXIS 151 ( Ky. 1867 ).

11. Estoppel of Obligor.

Assurances by obligor’s surety did not create an estoppel. (decided under prior law) Honore v. Dougherty, 7 Ky. 280 , 1815 Ky. LEXIS 162 ( Ky. 1815 ).

The obligor could, by his assurance and inducements to the assignee prior to assignment, estop himself to set up defenses he would otherwise have had whether known to him at the time or not. (decided under prior law) Barnes v. Wise, 19 Ky. 167 , 1826 Ky. LEXIS 15 ( Ky. 1826 ); Morrison's Adm'rs v. Beckwith, 20 Ky. 73 , 1826 Ky. LEXIS 120 ( Ky. 1826 ); Smith v. Stone, 56 Ky. 168 , 1856 Ky. LEXIS 21 ( Ky. 1856 ); McBrayer v. Collins, 57 Ky. 833 , 1857 Ky. LEXIS 104 ( Ky. 1857 ).

A renewal by the obligor directly to the assignee cut off defenses that the original note was tainted with usury or was given for a gaming consideration. (decided under prior law) Wooldridge v. Cates, 25 Ky. 221 , 1829 Ky. LEXIS 75 ( Ky. 1829 ); Breckenridge v. Churchill, 26 Ky. 11 , 1829 Ky. LEXIS 162 ( Ky. 1829 ); Stone v. McConnell, 62 Ky. 54 , 1863 Ky. LEXIS 19 ( Ky. 1863 ).

If the obligor’s assurances were made after assignment, he was not estopped to plead defenses unknown to him at the time of assignment. (decided under prior law) Clay v. McClanahan, 44 Ky. 241 , 1844 Ky. LEXIS 112 ( Ky. 1844 ).

When an obligor on a usurious note renewed same with one note for interest and another for principal, and the latter was assigned with notice, payments on the interest note were not allowable as credits on the principal note. (decided under prior law) Turneys v. Hunt, 47 Ky. 401 , 1848 Ky. LEXIS 91 ( Ky. 1848 ).

The maker of a note given to enable another to raise money could not, as against assignee, plead failure of accommodated party to indemnify him. (decided under prior law) Gano v. Finnell, 52 Ky. 390 , 1852 Ky. LEXIS 49 ( Ky. 1852 ).

The maker of a note given to enable another to raise money could not, as against assignee, plead failure of consideration. (decided under prior law) Barbaroux v. Barker, 61 Ky. 47 , 1862 Ky. LEXIS 12 ( Ky. 1862 ).

An obligor who simultaneously executed a writing denying the existence of defenses was estopped to plead that the note was obtained by fraud. (decided under prior law) Wells v. Lewis, 61 Ky. 269 , 1863 Ky. LEXIS 56 ( Ky. 1863 ). See Crabtree v. Atchison, 93 Ky. 338 , 20 S.W. 260, 14 Ky. L. Rptr. 313 , 1892 Ky. LEXIS 94 ( Ky. 1892 ).

An obligor who, after assignment with notice, was garnisheed as a debtor of the assignor and failed to disclose the assignment was estopped to plead the garnishment judgment against his assignee. (decided under prior law) Bibb v. Tomberlin, 62 Ky. 186 , 1864 Ky. LEXIS 18 ( Ky. 186 4 ).

An obligor who simultaneously executed a writing denying the existence of defenses was not estopped to plead that the note was given for a gaming consideration. (decided under prior law) Pace & Young v. Martin, 63 Ky. 522 , 1866 Ky. LEXIS 46 ( Ky. 1866 ).

When estoppel was relied on to defeat plea of fraud and failure of consideration, the burden of proof was on the assignee. (decided under prior law) Crabtree v. Atchison, 93 Ky. 338 , 20 S.W. 260, 14 Ky. L. Rptr. 313 , 1892 Ky. LEXIS 94 ( Ky. 1892 ).

An obligor who simultaneously executed a writing denying the existence of defenses is not estopped to plead that the note was obtained by fraud. Hill v. Thixton, 94 Ky. 96 , 23 S.W. 947, 14 Ky. L. Rptr. 900 , 1893 Ky. LEXIS 112 ( Ky. 1893 ); Louisville Ins. Co. v. Hoffman, 50 S.W. 979, 20 Ky. L. Rptr. 2016 (1899).

There is no estoppel when the obligor of a note given to enable another to raise money did not know that the paper was to be sold for that purpose and he may plead failure of accommodated party to indemnify him. Louisville Ins. Co. v. Hoffman, 50 S.W. 979, 20 Ky. L. Rptr. 2016 (1899); Murray v. Duffy, 66 S.W. 1038, 23 Ky. L. Rptr. 2194 , 1902 Ky. LEXIS 505 (Ky. Ct. App. 1902).

Estoppel must be pleaded. Ritchie v. Cralle, 108 Ky. 483 , 56 S.W. 963 ( Ky. 1900 ).

The maker of a note given to enable another to raise money cannot, as against assignee, plead failure of consideration. Ritchie v. Cralle, 108 Ky. 483 , 56 S.W. 963 ( Ky. 1900 ); Waggoner v. German-American Title Co., 56 S.W. 961, 22 Ky. L. Rptr. 215 , 1900 Ky. LEXIS 418 ( Ky. 1900 ); Cunningham v. Potter, 64 S.W. 493, 23 Ky. L. Rptr. 847 (1901).

Inducements by obligor to create an estoppel must have caused the assignee some loss. Harrigan v. Advance Thresher Co., 81 S.W. 261, 26 Ky. L. Rptr. 317 (1904).

12. Form.

No set form of words was required to assign a writing. Any words indicative of such an intent were sufficient. (decided under prior law) Frankfort Bank v. Hunter, 10 Ky. 292 , 1821 Ky. LEXIS 113 ( Ky. 1821 ); Newby & Taylor v. Hill & Million, 59 Ky. 530 , 1859 Ky. LEXIS 161 ( Ky. 1859 ).

That an assignment was in blank was immaterial. (decided under prior law) Owings v. Grimes, 15 Ky. 331 , 1824 Ky. LEXIS 103 ( Ky. 1824 ); Green v. Page, 80 Ky. 368 , 4 Ky. L. Rptr. 192 , 1882 Ky. LEXIS 70 ( Ky. 1882 ).

The assignment could be made on a separate piece of paper. (decided under prior law) Armstrong v. Flora, 19 Ky. 43 , 1825 Ky. LEXIS 97 ( Ky. 1825 ).

An assignment of a nonnegotiable writing jointly owned had to be executed by all of the joint owners in order to pass legal title. (decided under prior law) Snelling v. Boyd, 21 Ky. 172 , 1827 Ky. LEXIS 125 ( Ky. 1827 ).

The death of the assignor before a blank assignment was filled in did not revoke the right of the assignee to do so. (decided under prior law) Cope v. Daniel, 39 Ky. 415 , 1840 Ky. LEXIS 45 ( Ky. 1840 ).

An assignee of a blank assignment was entitled to fill in the blanks and negotiate or collect the note. (decided under prior law) Caruth v. Thompson, 55 Ky. 572 , 1855 Ky. LEXIS 73 ( Ky. 1855 ).

An assignment of a debt or other chose in action could be by parol as well as by deed. (decided under prior law) Newby & Taylor v. Hill & Million, 59 Ky. 530 , 1859 Ky. LEXIS 161 ( Ky. 1859 ); Gray v. Briscoe, 69 Ky. 687 , 1869 Ky. LEXIS 244 ( Ky. 1869 ).

A parol assignment of a debt or other chose in action is equitable only. Crews v. Yowell, 76 S.W. 127, 25 Ky. L. Rptr. 598 (1903).

An assignment of a debt or other chose in action may be by parol as well as by deed. Lexington Brewing Co. v. Hamon, 155 Ky. 711 , 160 S.W. 264, 1913 Ky. LEXIS 334 ( Ky. 1913 ); Shaw v. McKnight-Keaton Grocery Co., 231 Ky. 223 , 21 S.W.2d 269, 1929 Ky. LEXIS 250 ( Ky. 1929 ).

No set form of words is required to assign a writing. Any words indicative of such an intent are sufficient. Lexington Brewing Co. v. Hamon, 155 Ky. 711 , 160 S.W. 264, 1913 Ky. LEXIS 334 ( Ky. 1913 ).

An assignee of a blank assignment is entitled to fill in the blanks and negotiate or collect the note. P. A. Starck Piano Co. v. Hardin, 250 Ky. 669 , 63 S.W.2d 795, 1933 Ky. LEXIS 752 ( Ky. 1933 ).

No particular form is required for equitable assignment if intention to effect assignment is shown by acts or words. Commonwealth use of State Highway Com. v. Wilhoit, 274 Ky. 831 , 120 S.W.2d 670, 1938 Ky. LEXIS 352 ( Ky. 1938 ).

13. Fraudulent Assignment.

If an assignment was fraudulent, the assignee could recover the purchase price without having first sued the obligor. (decided under prior law) Cope v. Arberry, 25 Ky. 296 , 1829 Ky. LEXIS 85 ( Ky. 1829 ); Hurst v. Chambers, 75 Ky. 155 , 1876 Ky. LEXIS 53 ( Ky. 1876 ).

In a suit for fraud in sale of a note by concealing the insolvency of the maker, the assignee could prove (1) the sale (2) the insolvency, and (3) the fraudulent misrepresentations or suppression by the assignor. (decided under prior law) Cope v. Arberry, 25 Ky. 296 , 1829 Ky. LEXIS 85 ( Ky. 1829 ); Brannin v. Loving, 82 Ky. 370 , 6 Ky. L. Rptr. 328 , 1884 Ky. LEXIS 91 ( Ky. 1884 ).

When an assignor had no right to assign, the breach arose at the time of assignment and he could be sued at once. (decided under prior law) Emmerson v. Claywell, 53 Ky. 18 ( Ky. 18 53 ); Brannin v. Loving, 82 Ky. 370 , 6 Ky. L. Rptr. 328 , 1884 Ky. LEXIS 91 ( Ky. 1884 ).

An assignment by a member of a firm of part of a debt owing the firm, his partner consenting, is as valid in equity as if made in the firm name. Columbia Finance & Trust Co. v. First Nat'l Bank, 116 Ky. 364 , 76 S.W. 156, 25 Ky. L. Rptr. 561 , 1903 Ky. LEXIS 202 ( Ky. 1903 ).

No particular form is necessary to constitute an assignment, and a parol assignment is valid. Napier v. Duff, 281 Ky. 779 , 136 S.W.2d 1083, 1939 Ky. LEXIS 38 ( Ky. 1939 ).

14. Implied Warranty of Assignee.

An assignee need not test the liability of the obligors before suing. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

15. Implied Warranty of Assignor.

An assignor of a bond implied, unless he expressly stipulated to the contrary, that he was absolute and unconditional owner of same, and had an indefeasible right to demand what it called for. (decided under prior law) Emmerson v. Claywell, 53 Ky. 18 ( Ky. 18 53 ).

An assignor of a note guaranteed its genuineness as to all apparent parties to it. (decided under prior law) Wynn v. Poynter, 66 Ky. 54 , 1867 Ky. LEXIS 122 ( Ky. 1867 ), overruled, Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ); Hurst v. Chambers, 75 Ky. 155 , 1876 Ky. LEXIS 53 ( Ky. 1876 ).

An assignor impliedly agrees to become liable to assignee if the latter, after due diligence by suit against the obligor, fails to make the debt by reason of obligor’s insolvency. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

The implied warranty arises out of the sale and delivery, not out of the assignment. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

While an assignor without recourse relieves himself of liability for the insolvency of obligors, he nevertheless impliedly warrants that the paper is genuine and not a forgery. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

16. Liability of Assignee.

An assignee of a title bond was liable for purchase money owed by his assignor only if he had knowledge of it. However, any balance the assignee owed was subject to the prior debt. (decided under prior law) McBrayer v. Collins, 57 Ky. 833 , 1857 Ky. LEXIS 104 ( Ky. 1857 ).

The bona fide purchaser or assignee of a mere right of action is not guilty of champerty or maintenance unless a statute expressly forbids it. Holmes v. Clark, 274 Ky. 349 , 118 S.W.2d 758, 1938 Ky. LEXIS 285 ( Ky. 1938 ).

17. Liability of Assignor.

The fact that a note was given for a usurious consideration could not avail the assignor upon suit against him by the assignee. (decided under prior law) Owings v. Grimes, 15 Ky. 331 , 1824 Ky. LEXIS 103 ( Ky. 1824 ).

An assignee could, when his assignor was insolvent or out of the state, join all prior assignors and recover against the first assignor. (decided under prior law) McFadden v. Finnell, 42 Ky. 121 , 1842 Ky. LEXIS 120 ( Ky. 1842 ); Turneys v. Hunt, 47 Ky. 401 , 1848 Ky. LEXIS 91 ( Ky. 1848 ).

An assignee could not recover from a remote assignor more than he could recover from his immediate assignor, and the latter was a necessary party. (decided under prior law) Turneys v. Hunt, 47 Ky. 401 , 1848 Ky. LEXIS 91 ( Ky. 1848 ).

Joint assignors having different fractional interests were nevertheless subject to a joint judgment. (decided under prior law) Emmerson v. Claywell, 53 Ky. 18 ( Ky. 18 53 ).

An assignor who guaranteed payment was liable, if assignment was before maturity, at the time of maturity; otherwise, within a reasonable time thereafter. (decided under prior law) Yeates v. Walker, 62 Ky. 84 , 1863 Ky. LEXIS 27 ( Ky. 1863 ).

The conditional clause of a mortgage given by an assignor to his assignee which named both the obligors and the assignor did not extend the liability of the assignor, since the mortgage was given solely for purpose of giving security. (decided under prior law) Carlisle v. Chambers, 67 Ky. 268 , 1868 Ky. LEXIS 117 ( Ky. 1868 ).

An assignee entitled to recover from his assignor could recover the amount paid for the note, interest, costs and expenses. (decided under prior law) Hurst v. Chambers, 75 Ky. 155 , 1876 Ky. LEXIS 53 ( Ky. 1876 ).

In a suit between an assignee and assignor, the measure of recovery was the damages sustained. (decided under prior law) Hurst v. Chambers, 75 Ky. 155 , 1876 Ky. LEXIS 53 ( Ky. 1876 ).

The liability of an assignor of a promissory note was barred in five (5) years. (decided under prior law) Gilmore v. Green, 77 Ky. 772 , 1879 Ky. LEXIS 45 ( Ky. 1879 ).

In a suit between an assignee and assignor, the measure of recovery is the damages sustained and interest. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

The liability of an assignor of a promissory note is barred in five (5) years. Ware v. McCormack, 96 Ky. 139 , 28 S.W. 157, 16 Ky. L. Rptr. 385 , 1894 Ky. LEXIS 108 ( Ky. 1894 ).

18. Priority.

A subsequent assignee with notice of a prior assignment by his assignor could recover nothing from a third party who had promised to pay the amount due. (decided under prior law) Armstrong v. Flora, 19 Ky. 43 , 1825 Ky. LEXIS 97 ( Ky. 1825 ).

As between two notes executed to a party in the same transaction, one of which he assigned, the assigned note had priority. (decided under prior law) Forwood v. Dehoney, 68 Ky. 174 , 1868 Ky. LEXIS 240 ( Ky. 1868 ).

As between successive assignments, the order of time controls. Columbia Finance & Trust Co. v. First Nat'l Bank, 116 Ky. 364 , 76 S.W. 156, 25 Ky. L. Rptr. 561 , 1903 Ky. LEXIS 202 ( Ky. 1903 ).

19. Recording.

Assignment by road contractor to surety on performance bond of sums due from department of highways was not such a recordable instrument as to require recording in order to create an equitable lien under the assignment, and equities created by assignment would prevail over other subsequent in time. National Surety Corp. v. Massachusetts Bonding & Ins. Co., 280 Ky. 785 , 134 S.W.2d 611, 1939 Ky. LEXIS 201 ( Ky. 1939 ).

The statutes which require recording of mortgages, deeds, etc., of real and personal estate do not embrace choses in action or claims for debt. National Surety Corp. v. Massachusetts Bonding & Ins. Co., 280 Ky. 785 , 134 S.W.2d 611, 1939 Ky. LEXIS 201 ( Ky. 1939 ).

20. Acceptance.

A verbal acceptance of assignment is insufficient. Evans v. Stratton, 142 Ky. 615 , 134 S.W. 1154, 1911 Ky. LEXIS 269 ( Ky. 1911 ).

21. Rights of Assignee.

The assignee of a note given as the price of part of a mortgage tract was not required to give bond to secure the title. (decided under prior law) Morrison's Adm'rs v. Beckwith, 20 Ky. 73 , 1826 Ky. LEXIS 120 ( Ky. 1826 ).

Assignment passed the right of action but not the assignor’s right of recourse against his assignor. (decided under prior law) Turneys v. Hunt, 47 Ky. 401 , 1848 Ky. LEXIS 91 ( Ky. 1848 ); Mardis v. Tyler, 49 Ky. 376 , 1850 Ky. LEXIS 113 ( Ky. 1850 ).

An assignee could not sue the obligor on the original consideration but only on the note. (decided under prior law) Cason v. Wallace, 67 Ky. 388 , 1868 Ky. LEXIS 141 ( Ky. 1868 ).

An assignee for value and without notice became absolute owner subject only to the defenses of the maker acquired before notice of the assignment. (decided under prior law) Prather v. Weissiger, 73 Ky. 117 , 1873 Ky. LEXIS 62 ( Ky. 1873 ); Garrott v. Jaffray & Co., 73 Ky. 413 , 1874 Ky. LEXIS 67 ( Ky. 1874 ).

An assignee of a note could not be deprived of title to it by an action to which he was not a party. (decided under prior law) Garrott v. Jaffray & Co., 73 Ky. 413 , 1874 Ky. LEXIS 67 ( Ky. 1874 ).

An assignee hereunder for value and without notice becomes absolute owner subject only to the defenses of the maker acquired before notice of the assignment. Pensacola State Bank v. Melton, 210 F. 57, 1913 U.S. Dist. LEXIS 1024 (D. Ky. 1913 ).

22. Pleading.

Whether assignor should be made a party should be raised by special demurrer. P. A. Starck Piano Co. v. Hardin, 250 Ky. 669 , 63 S.W.2d 795, 1933 Ky. LEXIS 752 ( Ky. 1933 ).

23. Proof of Assignment.

In a suit on a contract of assignment, the assignee was not required to prove the assignment unless it had been denied or impeached under oath. (decided under prior law) Scott v. Cleveland, 19 Ky. 62 , 1825 Ky. LEXIS 104 ( Ky. 1825 ); Cope v. Arberry, 25 Ky. 296 , 1829 Ky. LEXIS 85 ( Ky. 1829 ).

Cited:

Walter J. Hieb Sand & Gravel, Inc. v. Universal C. I. T. Credit Corp., 332 S.W.2d 619, 1959 Ky. LEXIS 20 ( Ky. 1959 ).

Research References and Practice Aids

Cross-References.

Burial association contract not assignable, KRS 303.123 .

Land warrants not assignable, KRS 56.230 .

Public assistance not assignable, KRS 205.220 .

Unemployment compensation benefits not assignable, KRS 341.470 .

Kentucky Law Journal.

Smith, Uniform Commercial Code — Assignments — Conditional Sales Contracts — Waiver of Defense Clauses, 58 Ky. L.J. 850 (1970).

371.050. Assignee to aver consideration — Amount recoverable.

In an action on any assignment of a writing, the consideration for the assignment shall be averred. The plaintiff shall recover no more than the consideration actually paid by him for the note or assignment.

History. 475.

NOTES TO DECISIONS

1. Applicability.

Action referred to means action by an assignee against his assignor. This section does not apply to actions by assignee against obligor. Garnett v. Oliver, 239 Ky. 813 , 40 S.W.2d 322, 1931 Ky. LEXIS 850 ( Ky. 1931 ).

2. Pleadings.

The consideration for the assignment had to be alleged. (decided under prior law) Humphrey v. Hughes' Guardian, 79 Ky. 487 , 3 Ky. L. Rptr. 273 , 1881 Ky. LEXIS 60 ( Ky. 1881 ).

3. Amount of Recovery.

Recovery was limited to the amount actually paid. (decided under prior law) Humphrey v. Hughes' Guardian, 79 Ky. 487 , 3 Ky. L. Rptr. 273 , 1881 Ky. LEXIS 60 ( Ky. 1881 ).

Cited:

Rose v. Callahan, 246 S.W.2d 582, 1952 Ky. LEXIS 637 ( Ky. 1952 ).

371.060. Written obligation, when enforceable by representative or survivor of deceased.

A written nonnegotiable obligation to a person or persons who, or some of whom, are dead at the time of its execution, may be proceeded on by the representative of that person or by the survivor, as if it had been executed in the lifetime of the deceased person.

History. 477.

Research References and Practice Aids

Cross-References.

Heir or representative of joint obligor charged as if contract or judgment had been separate, KRS 412.010 .

Patent or deed to dead person inures to heirs, KRS 382.060 .

371.065. Requirements for valid, enforceable guaranty.

  1. No guaranty of an indebtedness which either is not written on, or does not expressly refer to, the instrument or instruments being guaranteed shall be valid or enforceable unless it is in writing signed by the guarantor and contains provisions specifying the amount of the maximum aggregate liability of the guarantor thereunder, and the date on which the guaranty terminates. Termination of the guaranty on that date shall not affect the liability of the guarantor with respect to:
    1. Obligations created or incurred prior to the date; or
    2. Extensions or renewals of, interest accruing on, or fees, costs or expenses incurred with respect to, the obligations on or after the date.
  2. Notwithstanding any other provision of this section, a guaranty may, in addition to the maximum aggregate liability of the guarantor specified therein, guarantee payment of interest accruing on the guaranteed indebtedness, and fees, charges and costs of collecting the guaranteed indebtedness, including reasonable attorneys’ fees, without specifying the amount of the interest, fees, charges and costs.

History. Enact. Acts 1986, ch. 485, § 1, effective July 15, 1986; 1990, ch. 38, § 1, effective July 13, 1990.

NOTES TO DECISIONS

Analysis

1. Legislative Intent.

Where House Bill 286 (Ky. Acts 1986, ch. 485) introducing the enactment of this section was titled “AN ACT relating to commercial paper,” the legislature did not intend to render it unconstitutional under Ky. Const., § 51 by placing it in the KRS contract law chapter, KRS Chapter 371. The statute retained its exclusive applicability to guaranties of commercial paper irrespective of its particular situs in Kentucky’s Revised Statutes. APL, Inc. v. Ohio Valley Aluminum, Inc., 839 S.W.2d 571, 1992 Ky. App. LEXIS 212 (Ky. Ct. App. 1992) (decided prior to the 1990 amendment).

Where this section was amended in 1990, the title of the act was changed from “AN ACT relating to commercial paper” to “AN ACT relating to guaranties.” Plaintiff corporation contended that the legislature thus explicitly revealed in 1990 that it had intended all along for the statute to apply to all guaranties. Plaintiff’s guaranty to defendant was signed in 1989. In 1989 this section had applicability solely to guaranties relating to commercial paper, pursuant to the statute’s 1986 enactment. Plaintiff’s guaranty to defendant did not guaranty a transaction involving commercial paper. The fact that this section was amended in 1990 to be given broader applicability was irrelevant for purposes of the appeal. APL, Inc. v. Ohio Valley Aluminum, Inc., 839 S.W.2d 571, 1992 Ky. App. LEXIS 212 (Ky. Ct. App. 1992).

In accordance with the plain meaning of the statute, where a credit application included a guaranty agreement on the application in two (2) places, the agreements were not required to state either the debtor’s maximum liability or a termination date and the agreements were therefore valid and enforceable against the debtor. Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 2004 Ky. LEXIS 45 ( Ky. 2004 ).

2. Applicability.

As the insurer paid a claim against the corporation’s performance bond, KRS 371.065 did not allow the corporation to renege on its contractual obligations under an indemnity agreement. Intercargo Ins. Co. v. B. W. Farrell, Inc., 89 S.W.3d 422, 2002 Ky. App. LEXIS 2221 (Ky. Ct. App. 2002).

Because a surety company executed payment bonds on behalf of any of the indemnitors to a 1995 General Agreement of Indemnity (GAI), and the terms of the GAI were very clear in that it applied to any bonds executed on or behalf of any of the indemnitors, all of the sued indemnitors were held liable for the bonds issued to a defaulting construction company with regard to a particular development project in Kentucky. Frontier Ins. Co. in Rehab. v. MC Mgmt., 2009 U.S. Dist. LEXIS 17307 (W.D. Ky. Mar. 4, 2009), aff'd, 468 Fed. Appx. 506, 2012 FED App. 0287N, 2012 U.S. App. LEXIS 5395 (6th Cir. Ky. 2012 ).

3. Requirements.

Bankruptcy debtor was liable on a guaranty of a line of credit for relatives, since an agreement between the relatives and the creditor extending the maturity of the line of credit did not abrogate the debtor’s liability on the guaranty, but such liability was limited to the amount owing on the date the guaranty expired. In re Lowe, 2005 Bankr. LEXIS 3200 (Bankr. E.D. Ky. Aug. 3, 2005).

A purported guaranty allegedly given by a Chapter 7 debtor to a lender did not meet the requirements of KRS 371.065 because the only reference to a guaranty was one line on a promissory note that stated “with personal guaranty” of the debtors. The document did not contain provisions specifying the amount of the maximum aggregate liability of the guarantor and the date upon which the guaranty terminated. Commonwealth Ambulance Serv. v. Roush (In re Roush), 2007 Bankr. LEXIS 3375 (Bankr. W.D. Ky. Sept. 30, 2007).

Guaranty was valid and enforceable because it met the statutory requirements since it expressly referred to the agreement being guaranteed, and it specifically identified the guaranteed obligations; there was no additional requirement that the guaranty state the maximum liability and the termination date. Alliant Tax Credit Fund 31-A, Ltd. v. Nicholasville Cmty. Hous., LLC, 663 F. Supp. 2d 575, 2009 U.S. Dist. LEXIS 90782 (E.D. Ky. 2009 ).

Guaranty agreement related to a promissory note was enforceable against the guarantor because the agreement effectively referenced the instrument it guaranteed within the meaning of KRS 371.065 as the Schedule 1 document, attached to and referenced by the agreement, explicitly referred to the promissory note. Smith v. Bethlehem Sand & Gravel Co., LLC, 342 S.W.3d 288, 2011 Ky. App. LEXIS 74 (Ky. Ct. App. 2011).

Where debtors obtained a loan for defendants, the maker and guarantor of a promissory note, lack of consideration as required by KRS 371.065 for a guaranty was not a valid defense to guarantors’ obligation on the note. Nonneman v. Murphy (In re Nonneman), 2012 Bankr. LEXIS 4264 (Bankr. E.D. Ky. Sept. 13, 2012).

Guaranty agreements were unenforceable because they did not expressly refer to the instrument guaranteed, did not clearly refer to other documents referencing the instrument guaranteed, and did not otherwise meet the requirements of this section, which cannot be waived. Guangzhou Consortium Display Prod. Co. v. PNC Bank, N.A., 956 F. Supp. 2d 769, 2013 U.S. Dist. LEXIS 96172 (E.D. Ky. 2013 ).

Trial court properly granted summary judgment to the lease assignees because the guaranties at issue were statutorily enforceable where they provided the guarantors sufficient detail to know the breadth of the obligation and risks they were accepting, the assignees would have been prejudiced if discovery were prolonged due to the guarantors’ untimely admissions, and the guarantors offered no proof a different amount due under the guaranties until after summary judgment had already been awarded. Buridi v. Leasing Group Pool II, LLC, 447 S.W.3d 157, 2014 Ky. App. LEXIS 51 (Ky. Ct. App. 2014).

Plaintiffs may enforce the guaranties, pursuant to the statute, to collect (1) royalty payments, (2) advertising payments, (3) de-imaging costs, and (4) equipment lease payments because each of these obligations were explicitly contemplated in each outlet's franchise agreement and the subject guaranties each expressly referred to their corresponding outlet's franchise agreement. KFC Corp. v. Kazi, 29 F. Supp. 3d 945, 2014 U.S. Dist. LEXIS 87515 (W.D. Ky. 2014 ).

Federal Trust Fund's coverage of black lung benefits was not a guaranty under Kentucky law because the Trust Fund did not have contracts with insurance companies that provided coverage for the Black Lung Benefits Act; the Kentucky Insurance Guaranty Association coverage exception for claims guaranteed by governmental agencies therefore did not apply. Island Fork Constr. v. Bowling, 872 F.3d 754, 2017 FED App. 0227P, 2017 U.S. App. LEXIS 18891 (6th Cir. 2017).

Notes to Unpublished Decisions

1. Requirements.

Unpublished decision: Guaranty agreements plainly satisfied KRS 371.065 because the guaranty agreements expressly referred to the instrument they guaranteed. Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, 494 Fed. Appx. 561, 2012 FED App. 0904N, 2012 U.S. App. LEXIS 17385 (6th Cir. Ky. 2012 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guaranty, § 195.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint on Guaranty to Pay Debt of Third Person on Condition That Time is Extended to the Latter, Form 195.01.

371.070. Effect of promissory note made payable to obligor.

If a nonnegotiable promissory note is made by the obligor payable to himself or to his order, and is signed on the back by the obligor, and then delivered, the signature and delivery shall constitute a promise to pay the face of the note at maturity to the party to whom the note is delivered, and that party may fill up the blank with words of promise, and recover on it as if he had been named as payee in the note. Such notes shall be assignable as are other promissory notes.

History. 480.

NOTES TO DECISIONS

1. Words of Promise.

Such an instrument was enforceable even when the bearer had not filled the blank with words of promise. Until this was done, the paper only implied a promise, and was not a promissory note. As to the maker of such a note, protest and notice of dishonor were immaterial. (decided under prior law) Pace v. Welmending, Haguet & Co., 75 Ky. 141 , 1876 Ky. LEXIS 49 ( Ky. 1876 ).

Where maker indorsed note and gave note to one who sold and transferred note to bank and bank sold note to appellee, words of promise to pay entered on back of note above maker’s indorsement need not have been placed thereon prior to sale and delivery of note by bank to appellee in order to make note assignable. Bramblett v. Caldwell, 105 Ky. 202 , 48 S.W. 982, 20 Ky. L. Rptr. 1123 , 1899 Ky. LEXIS 192 ( Ky. 1899 ).

Cited:

Wilson v. Hillman, 306 Ky. 508 , 208 S.W.2d 493, 1948 Ky. LEXIS 592 ( Ky. 1948 ).

371.080. Person signing back of note considered assignor.

Any person who signs his name upon the back of a nonnegotiable promissory note shall be considered an assignor as to the party holding it, unless a different purpose is expressed in writing.

History. 481.

NOTES TO DECISIONS

1. Applicability.

This section was applicable to a negotiable note. First Nat'l Bank v. Bickel, 143 Ky. 754 , 137 S.W. 790, 1911 Ky. LEXIS 529 ( Ky. 1911 ).

2. Liability of Assignor.

Every person signing the back of a promissory note was deemed an assignor unless a different purpose was expressed in writing. (decided under prior law) Williams v. Obst, 75 Ky. 266 , 1876 Ky. LEXIS 73 ( Ky. 1876 ); Krachts's Adm'r v. Obst, 77 Ky. 34 , 1878 Ky. LEXIS 31 ( Ky. 1878 ); Edgewood Distilling Co. v. Nowland, 44 S.W. 364, 19 Ky. L. Rptr. 1740 (1898).

Every person signing the back of a promissory note is deemed an assignor unless a different purpose is expressed in writing and is not liable until maker is presented to insolvency. American Nat'l Bank v. Smallhouse, 113 Ky. 147 , 67 S.W. 260, 23 Ky. L. Rptr. 2382 , 1902 Ky. LEXIS 23 ( Ky. 1902 ); Adams & Westlake Co. v. Robinson, 76 S.W. 510, 25 Ky. L. Rptr. 853 (1903); Dotson v. Owsley, 141 Ky. 452 , 132 S.W. 1037, 1911 Ky. LEXIS 13 ( Ky. 1911 ).

A nonnegotiable note was not rendered negotiable when the payee signed his name on its back, but payee was only an assignor and was only liable after maker was sued and proven unable to pay. Wettlaufer v. Baxter, 137 Ky. 362 , 125 S.W. 741, 1910 Ky. LEXIS 579 ( Ky. 1910 ).

371.090. Agent’s authority to bind another as surety to be in writing.

No person shall be bound as the surety of another by the act of an agent unless the authority of the agent is in writing, signed by the principal, or, if the principal does not write his name, then by his sign or mark, made in the presence of at least one creditable attesting witness.

History. 482.

NOTES TO DECISIONS

1. Applicability.

The provision herein as to attestation of a signature by mark does not apply to a person signing his own name as principal obligor. Meazles v. Martin, 93 Ky. 50 , 18 S.W. 1028 ( Ky. 1892 ).

This section applies to the signing of the surety’s name on either a note or a mortgage securing it. Dickson's Adm'r v. Luman, 93 Ky. 614 , 20 S.W. 1038, 14 Ky. L. Rptr. 884 , 1893 Ky. LEXIS 153 ( Ky. 1893 ).

The provision herein as to written authority does not apply to an attesting witness to a surety’s signature by mark. Staples v. Bedford Loan & Deposit Bank, 98 Ky. 451 , 33 S.W. 403, 17 Ky. L. Rptr. 1035 , 1895 Ky. LEXIS 80 ( Ky. 1895 ).

This section applies to bail bonds. Commonwealth v. Belt, 51 S.W. 431, 21 Ky. L. Rptr. 339 (1899).

This section applies to both private and official transactions. United States Fidelity & Guaranty Co. v. McGinnis' Adm'r, 147 Ky. 781 , 145 S.W. 1112, 1912 Ky. LEXIS 358 ( Ky. 1912 ).

This section does not apply to indemnifiers. W. H. Carsey & Co. v. Swan & James, 150 Ky. 473 , 150 S.W. 534, 1912 Ky. LEXIS 919 ( Ky. 1912 ).

2. Acting in Presence of Principal.

The fact that the agent acted in the presence of the surety was immaterial. (decided under prior law) Billington v. Commonwealth, 79 Ky. 400 , 3 Ky. L. Rptr. 19 , 1881 Ky. LEXIS 43 (Ky. Ct. App. 1881); Simpson v. Commonwealth, 89 Ky. 412 , 12 S.W. 630, 11 Ky. L. Rptr. 619 , 1889 Ky. LEXIS 139 ( Ky. 1889 ); Dickson's Adm'r v. Luman, 93 Ky. 614 , 20 S.W. 1038, 14 Ky. L. Rptr. 884 , 1893 Ky. LEXIS 153 ( Ky. 1893 ).

The fact that the agent acted in the presence of the surety is immaterial. Wilson v. Linville, 96 Ky. 50 , 27 S.W. 857, 16 Ky. L. Rptr. 340 , 1894 Ky. LEXIS 90 ( Ky. 1894 ); Bramel v. Byron, 43 S.W. 695, 19 Ky. L. Rptr. 1440 (1897); Union Cent. Life Ins. Co. v. Johnson's Adm'x, 76 S.W. 335, 25 Ky. L. Rptr. 682 (1903).

3. Telephoned Telegrams.

Telegrams delivered by phone were writings. Selma Sav. Bank v. Webster County Bank, 182 Ky. 604 , 206 S.W. 870, 1918 Ky. LEXIS 411 ( Ky. 1918 ).

4. “Procure” as “Sign” or “Execute.”

An agreement between a bonding company and its agent authorized him to “procure bonds.” The word “procure” is equivalent to “sign” or “execute.” Southern Surety Co. v. Miller, 236 Ky. 166 , 32 S.W.2d 529, 1930 Ky. LEXIS 666 ( Ky. 1930 ).

5. Scope of Authority.

A power of attorney to transact and attend to the principal’s business and to execute notes does not confer authority to execute notes as surety. Clinton v. Hibb's Ex'x, 202 Ky. 304 , 259 S.W. 356, 1924 Ky. LEXIS 703 ( Ky. 1924 ).

6. Oral Authority.

An attorney for a surety in a suit upon the obligation could take steps in the suit affecting his client’s rights without written authority. (decided under prior law) Park v. Cline, 13 Ky. Op. 580, 7 Ky. L. Rptr. 215 , 7 Ky. L. Rptr. 218 , 7 Ky. L. Rptr. 230 , 1885 Ky. LEXIS 268 (Ky. Ct. App. Sept. 19, 1885).

A surety who testified that he had not authorized the signing of his name, when he in fact gave verbal authority, was not guilty of false swearing. (decided under prior law) Simpson v. Commonwealth, 89 Ky. 412 , 12 S.W. 630, 11 Ky. L. Rptr. 619 , 1889 Ky. LEXIS 139 ( Ky. 1889 ).

Although automobile renter’s daughter signed “trip slip” without written authority from her mother and her mother was not liable on “trip slip,” her mother was liable for damage to the rented automobile by her daughter under her original contract with the rental agency which covered an indefinite period for the mother and her family. U-Drive-It Co. v. Archer, 277 Ky. 356 , 126 S.W.2d 837, 1939 Ky. LEXIS 671 ( Ky. 1939 ).

7. Ratification.

An oral authority to sign the name of another as surety could not be ratified by parol. (decided under prior law) Ragan v. Chenault, 78 Ky. 545 , 1 Ky. L. Rptr. 258 , 1880 Ky. LEXIS 57 ( Ky. 1880 ); Riggan v. Crain, 86 Ky. 249 , 5 S.W. 561, 9 Ky. L. Rptr. 528 , 1887 Ky. LEXIS 126 ( Ky. 1887 ).

A surety was estopped by an oral ratification if he induced payee to forbear suit. (decided under prior law) Rudd v. Matthews, 79 Ky. 479 , 3 Ky. L. Rptr. 286 , 1881 Ky. LEXIS 59 (Ky. Ct. App. 1881).

A surety was not estopped by an oral ratification. (decided under prior law) English v. Dycus, 5 S.W. 44, 9 Ky. L. Rptr. 188 (1887); Riggan v. Crain, 86 Ky. 249 , 5 S.W. 561, 9 Ky. L. Rptr. 528 , 1887 Ky. LEXIS 126 ( Ky. 1887 ).

An oral authority to sign the name of another as surety could be cured by written ratification or by a legal resigning. (decided under prior law) Riggan v. Crain, 86 Ky. 249 , 5 S.W. 561, 9 Ky. L. Rptr. 528 , 1887 Ky. LEXIS 126 ( Ky. 1887 ).

An oral authority to sign the name of another as surety cannot be ratified by parol. Union Cent. Life Ins. Co. v. Johnson's Adm'x, 76 S.W. 335, 25 Ky. L. Rptr. 682 (1903); Langford v. State Bank & Trust Co., 251 Ky. 633 , 65 S.W.2d 730, 1933 Ky. LEXIS 928 ( Ky. 1933 ); Dalton v. Shelton, 267 Ky. 40 , 101 S.W.2d 208, 1937 Ky. LEXIS 281 ( Ky. 1937 ).

A surety is estopped by an oral ratification if his statements induced acceptance of the instrument. Union Cent. Life Ins. Co. v. Johnson's Adm'x, 76 S.W. 335, 25 Ky. L. Rptr. 682 (1903).

A surety is not estopped by an oral ratification. Clinton v. Hibb's Ex'x, 202 Ky. 304 , 259 S.W. 356, 1924 Ky. LEXIS 703 ( Ky. 1924 ).

An oral authority to sign the name of another as surety may be cured by written ratification. Detroit Fidelity & Surety Co. v. Gilliam, 237 Ky. 425 , 34 S.W.2d 971, 1931 Ky. LEXIS 557 ( Ky. 1931 ); Langford v. State Bank & Trust Co., 251 Ky. 633 , 65 S.W.2d 730, 1933 Ky. LEXIS 928 ( Ky. 1933 ).

Ratification may be in the form of letters and telegrams. Detroit Fidelity & Surety Co. v. Gilliam, 237 Ky. 425 , 34 S.W.2d 971, 1931 Ky. LEXIS 557 ( Ky. 1931 ).

A written ratification after an assignment by the surety for the benefit of his creditors does not entitle the creditor to share in the assigned estate. Langford v. State Bank & Trust Co., 251 Ky. 633 , 65 S.W.2d 730, 1933 Ky. LEXIS 928 ( Ky. 1933 ).

A surety is estopped by an oral ratification if he induced payee to forbear suit. Dalton v. Shelton, 267 Ky. 40 , 101 S.W.2d 208, 1937 Ky. LEXIS 281 ( Ky. 1937 ).

8. Blank Guaranty Forms.

Where guarantors signed blank guaranty forms but gave no written authorization to debtor’s representative to act on their behalf, no legal agency relationship existed and guaranty agreements were unenforceable. Citizens Fidelity Bank v. Lamar, 561 S.W.2d 326, 1977 Ky. App. LEXIS 892 (Ky. Ct. App. 1977).

9. Guaranty Agreement.

This section permits an agent to enter into a binding guaranty agreement on behalf of a principal if the principal has given the agent written authority to do so. Brooks v. United Kentucky Bank, 659 S.W.2d 213, 1983 Ky. App. LEXIS 392 (Ky. Ct. App. 1983).

Research References and Practice Aids

Kentucky Law Journal.

Funk, Negotiable Instruments — Agent’s Authority To Be in Writing, 35 Ky. L.J. 144 (1947).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Limited Power of Attorney to Sign Name of Surety, Form 201.09.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Principal and Agent, § 200.00.

371.100. Contract for sale of standing timber to be written.

No contract for the sale of standing trees or standing timber shall be enforceable by action unless the contract or some memorandum thereof is in writing, signed by the person to be charged or by his duly authorized agent.

History. 1409-13.

NOTES TO DECISIONS

1. Purpose.

Plea that purchase of timber was void because not in writing was unavailing. The purpose of this section is apparently to fix right of parties to “be charged” and to fix status of contracting parties. Patton v. Lucy, 285 Ky. 694 , 148 S.W.2d 1039, 1940 Ky. LEXIS 611 ( Ky. 1940 ).

2. Applicability.

A contract for the cutting of timber and preparation of lumber for sale on a percentage basis is not a contract for the sale of standing timber and this section is not applicable. Frymire v. Dutschke, 221 Ky. 369 , 298 S.W. 983, 1924 Ky. LEXIS 27 ( Ky. 1924 ).

3. Parol Contracts.

A parol contract for the sale of standing timber is invalid. Sears v. Ohler, 144 Ky. 473 , 139 S.W. 759, 1911 Ky. LEXIS 653 ( Ky. 1911 ); Johnson v. Broughton, 183 Ky. 628 , 210 S.W. 455, 1919 Ky. LEXIS 552 ( Ky. 1919 ).

A parol contract for the sale of standing timber is invalid whether the timber is treated as personalty or realty. Burris v. Stepp, 162 Ky. 269 , 172 S.W. 526, 1915 Ky. LEXIS 55 ( Ky. 1915 ); Cheatham v. Head, 203 Ky. 489 , 262 S.W. 622, 1924 Ky. LEXIS 940 ( Ky. 1924 ); Coleman v. Kelley, 206 Ky. 39 , 266 S.W. 906, 1924 Ky. LEXIS 275 ( Ky. 1924 ).

The defendant may prove that the contract was oral under a general denial of the contract. Johnson v. Broughton, 183 Ky. 628 , 210 S.W. 455, 1919 Ky. LEXIS 552 ( Ky. 1919 ).

A purchaser of standing timber by parol agreement is liable to his vendor for timber actually cut and removed, not at the contract price but only upon a quantum meruit. Coleman v. Kelley, 206 Ky. 39 , 266 S.W. 906, 1924 Ky. LEXIS 275 ( Ky. 1924 ).

4. Sufficient Writing.

Contract for sale of standing timber was not void for uncertainty, where trees were described in sufficient detail that they could be identified by expert timber men even after passage of 20 years. Fordson Coal Co. v. Garrard, 277 Ky. 218 , 125 S.W.2d 977, 1939 Ky. LEXIS 611 ( Ky. 1939 ).

Where defendant prepared contract for sale of standing timber and mother signed it for herself and as agent for her sons, this section was complied with. Burke v. Glover, 303 S.W.2d 298, 1957 Ky. LEXIS 252 ( Ky. 1957 ).

5. Insufficient Writing.

A note executed for standing timber, which note recited the consideration and was indorsed by the payee, was not a sufficient memorandum under KRS 371.010 . Second Nat'l Bank v. Rouse, 142 Ky. 612 , 134 S.W. 1121, 1911 Ky. LEXIS 249 ( Ky. 1911 ). See Coleman v. Kelley, 206 Ky. 39 , 266 S.W. 906, 1924 Ky. LEXIS 275 ( Ky. 1924 ).

6. Party to Be Charged.

The vendor is the party to be charged. Sears v. Ohler, 144 Ky. 473 , 139 S.W. 759, 1911 Ky. LEXIS 653 ( Ky. 1911 ); Johnson v. Broughton, 183 Ky. 628 , 210 S.W. 455, 1919 Ky. LEXIS 552 ( Ky. 1919 ); Coleman v. Kelley, 206 Ky. 39 , 266 S.W. 906, 1924 Ky. LEXIS 275 ( Ky. 1924 ).

7. Passing of Title.

To pass title to standing timber, it is necessary that the contract or some memorandum thereof be in writing and signed by the person to be charged, or his authorized agent. Coleman v. Kelley, 206 Ky. 39 , 266 S.W. 906, 1924 Ky. LEXIS 275 ( Ky. 1924 ); Patton v. Lucy, 285 Ky. 694 , 148 S.W.2d 1039, 1940 Ky. LEXIS 611 ( Ky. 1940 ); Stephens v. Kidd, 298 Ky. 38 , 181 S.W.2d 688, 1944 Ky. LEXIS 836 ( Ky. 1944 ).

8. Constructive Severance.

A sale of standing trees, in contemplation of their immediate severance from the soil, by either vendor or vendee, is a constructive severance of them and they pass as chattels. Patton v. Lucy, 285 Ky. 694 , 148 S.W.2d 1039, 1940 Ky. LEXIS 611 ( Ky. 1940 ); Stephens v. Kidd, 298 Ky. 38 , 181 S.W.2d 688, 1944 Ky. LEXIS 836 ( Ky. 1944 ).

9. Rights Between Parties.

As between the parties, the contract need not be recorded. V. Bowerman & Co. v. Taylor, 127 Ky. 812 , 106 S.W. 846, 32 Ky. L. Rptr. 671 , 1908 Ky. LEXIS 23 ( Ky. 1908 ); Cheatham v. Head, 203 Ky. 489 , 262 S.W. 622, 1924 Ky. LEXIS 940 ( Ky. 1924 ).

As between the parties, title passes upon the execution of the written contract. V. Bowerman & Co. v. Taylor, 127 Ky. 812 , 106 S.W. 846, 32 Ky. L. Rptr. 671 , 1908 Ky. LEXIS 23 ( Ky. 1908 ); Burris v. Stepp, 162 Ky. 269 , 172 S.W. 526, 1915 Ky. LEXIS 55 ( Ky. 1915 ); Murray v. Boyd, 165 Ky. 625 , 177 S.W. 468, 1915 Ky. LEXIS 577 ( Ky. 1915 ); E. C. Artman Lumber Co. v. Bogard, 191 Ky. 392 , 230 S.W. 953, 1921 Ky. LEXIS 346 ( Ky. 1921 ).

As between the parties, the contract need not be acknowledged or proven. Burris v. Stepp, 162 Ky. 269 , 172 S.W. 526, 1915 Ky. LEXIS 55 ( Ky. 1915 ); Cheatham v. Head, 203 Ky. 489 , 262 S.W. 622, 1924 Ky. LEXIS 940 ( Ky. 1924 ).

10. Notice to Third Parties.

The purchaser, in order to acquire good title as against third parties, must, if the trees are treated as realty, comply with KRS 382.270 providing for recording, and, if treated as personalty, comply with either KRS 364.120 providing for branding of timber or KRS 378.040 providing for delivery. V. Bowerman & Co. v. Taylor, 127 Ky. 812 , 106 S.W. 846, 32 Ky. L. Rptr. 671 , 1908 Ky. LEXIS 23 ( Ky. 1908 ).

KRS 364.120 providing for branding of timber was not intended to provide a method of selling standing timber without a written contract. The effect of that section is merely to provide a method of notice to third parties of a written contract of sale, and has the same effect as to third parties as would a recording. Burris v. Stepp, 162 Ky. 269 , 172 S.W. 526, 1915 Ky. LEXIS 55 ( Ky. 1915 ); Cheatham v. Head, 203 Ky. 489 , 262 S.W. 622, 1924 Ky. LEXIS 940 ( Ky. 1924 ).

Research References and Practice Aids

Kentucky Law Journal.

Kinnaird, Specific Performance Contracts for Sale of Non-Unique Standing Timber for Immediate Severance, 36 Ky. L.J. 221 (1948); Thompson, Oral Contracts for the Sale of Standing Timber in Kentucky, 38 Ky. L.J. 175 (1949).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Contract for Sale of Standing Timber, Form 352.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Contracts, § 210.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Logs and Timber, § 352.00.

371.110. Pledge or transfer of future wages — What instrument shall state.

No assignment, sale, pledge, mortgage or other transfer of wages to be earned or paid in the future, where the whole or a part of the consideration for the assignment, sale, pledge, mortgage or other transfer is a sum of money of less than two hundred dollars ($200) shall be valid unless the instrument evidencing it:

  1. Is in writing subscribed by the assignor, and bears the true date of its signature by the assignor and the true date of delivery of the money;
  2. Contains a true statement of the consideration, the amount of money advanced or paid, the interest and all other fees and charges paid or agreed to be paid by the assignor, the time when the debt, if any, matures and, if the debt is to be paid in installments, the date of payment of each installment; and
  3. Gives the full name and address of each assignee, vendee, pledgee or mortgagee. If the assignee, vendee, pledgee or mortgagee is a partnership, the instrument shall give the name of each member of the partnership, and if it is a corporation or a nonresident partnership or individual, the instrument shall give the name and address of some person in the state upon whom process may be served in any litigation involving the instrument.

History. 4758a-1.

NOTES TO DECISIONS

1. Deduction of Union Dues, Assessments and Fees.

Check-off orders signed by employes authorizing employer to deduct union dues, assessments and initiation fees from their wages were binding upon them during the period of the contract between the union and the coal operations association either because they were estopped by their acceptance of food and supplies from the union or because they had not attempted to arbitrate their grievances in the manner prescribed and the check-off orders were not violative of the constitutional or statutory requirement that wages be paid in money or the statutes relating to the assignment or sale of wages. Braddom v. Three Point Coal Corp., 288 Ky. 734 , 157 S.W.2d 349, 1941 Ky. LEXIS 200 ( Ky. 1941 ).

2. Priority in Bankruptcy.

Although assignments of wages were not executed in conformity with statutes and were perhaps invalid for other reasons, where the trustee in bankruptcy, who had been served with summons, neither contested the validity of the assignments in the state court nor offered any defense to the action, the judgment of the state court was binding on the bankruptcy court. Freeman Furniture Factories, Inc. v. Bowlds, 136 F.2d 136, 1943 U.S. App. LEXIS 2982 (6th Cir. Ky. 1943 ).

Research References and Practice Aids

Cross-References.

Wage assignment not to be taken on certain bank loans, KRS 286.3-215 .

Wages and hours, KRS Ch. 337.

Kentucky Law Journal.

Stevens, The Development of Labor Law in Kentucky, 28 Ky. L.J. 160 (1940).

371.120. Assent of employer required for pledge or transfer of wages.

No such instrument shall be valid against the employer who is to pay the wages until the employer signifies in writing upon the instrument his assent to the assignment, sale, pledge, mortgage or transfer.

History. 4758a-2.

NOTES TO DECISIONS

1. Priority in Bankruptcy.

Although assignments of wages were not executed in conformity with statutes and were perhaps invalid for other reasons, where the trustee in bankruptcy, who had been served with summons, neither contested the validity of the assignments in the state court nor offered any defense to the action, the judgment of the state court was binding on the bankruptcy court. Freeman Furniture Factories, Inc. v. Bowlds, 136 F.2d 136, 1943 U.S. App. LEXIS 2982 (6th Cir. Ky. 1943 ).

Research References and Practice Aids

Kentucky Law Journal.

Oberst, Partial Assignments in Kentucky — The Rule in Henry Clay Fire Ins. Co. v. Denker’s Exr. , 26 Ky. L.J. 250 (1938).

371.130. Copy to be delivered to wage earner — Endorsement of payments made — Effect of violation or fraud.

  1. No such instrument shall be valid against the wage earner unless a true and complete copy is delivered to him at or before the time of the payment of the consideration to him.
  2. No such instrument shall be valid against any such wage earner in any case where the copy was, with or without the consent of the wage earner, taken from his possession, altered or destroyed by the assignee, vendee, pledgee or mortgagee, or his agent.
  3. The assignee, vendee, pledgee or mortgagee shall, upon demand and the payment of ten cents ($0.10), furnish the wage earner an exact copy of the instrument. Any false statement made in the copy shall make the original instrument invalid against the wage earner.
  4. The time and amount of all payments made by the wage earner under the terms of the instrument shall be endorsed on the copy and on the original, and shall be a part thereof. A failure to endorse any such payment shall make the instrument invalid.

History. 4758a-3.

NOTES TO DECISIONS

1. Priority in Bankruptcy.

Although assignments of wages were not executed in conformity with statutes and were perhaps invalid for other reasons, where the trustee in bankruptcy, who had been served with summons, neither contested the validity of the assignments in the state court nor offered any defense to the action, the judgment of the state court was binding on the bankruptcy court. Freeman Furniture Factories, Inc. v. Bowlds, 136 F.2d 136, 1943 U.S. App. LEXIS 2982 (6th Cir. Ky. 1943 ).

371.140. Instrument to be definite and to bear execution date.

No such instrument shall be valid or enforceable unless it is for a fixed and definite part of the wages earned or to be earned during a period not exceeding ninety (90) days immediately following the date of the instrument. Any such instrument bearing any other date than that of its execution shall be void.

History. 4758a-4.

NOTES TO DECISIONS

1. Priority in Bankruptcy.

Although assignments of wages were not executed in conformity with statutes and were perhaps invalid for other reasons, where the trustee in bankruptcy, who had been served with summons, neither contested the validity of the assignments in the state court nor offered any defense to the action, the judgment of the state court was binding on the bankruptcy court. Freeman Furniture Factories, Inc. v. Bowlds, 136 F.2d 136, 1943 U.S. App. LEXIS 2982 (6th Cir. Ky. 1943 ).

371.150. Exemptions.

KRS 371.110 to 371.150 do not apply to any national or state bank, or to any credit union or trust company.

History. 4758a-5.

371.160. Deposit in escrow of amount held back by owner in contract involving improvement of real estate.

  1. If, in any contract in the amount of five hundred thousand dollars ($500,000) or more involving the improvement of real estate, a certain amount or percentage of the contract is held back by the owner, that retained amount shall be deposited in a separate escrow account with a bank or trust company authorized to do business in the Commonwealth of Kentucky.
  2. As of the time of the deposit of the retained funds, they shall become the sole and separate property of the contractor to whom they are owed.
  3. The escrow agent shall promptly invest all escrowed principal in obligations selected by the escrow agent in its discretion.
  4. Upon satisfactory completion of the contract, to be evidenced by a written release by the owner, all funds accumulated in the escrow account, together with any interest thereon, shall be paid immediately to the contractor to whom it is owed.
  5. The escrow agent shall be compensated for its services in an amount agreed to by the owner, contractor, and escrow agent. The compensation shall be a commercially reasonable fee commensurate with fees being charged for handling of escrow accounts of similar size and duration. The compensation shall be paid from the escrow account.
  6. In the event the owner fails or refuses to execute the release provided for in subsection (4) of this section, then the contractor shall have a cause of action against the owner in a court of proper jurisdiction.
  7. This section shall not apply to contracts with the Commonwealth, any county, charter county, urban-county government, or municipality, or any other political subdivision, agency, or instrumentality of the Commonwealth, or school boards.

History. Enact. Acts 1990, ch. 506, § 1, effective July 13, 1990; 1998, ch. 340, § 2, effective July 15, 1998.

Opinions of Attorney General.

This section is applicable to contracts excluding those with the Commonwealth and school boards which were entered into on and subsequent to the effective date of the statute which in this case was July 13, 1990. OAG 91-40 .

371.170. Contracts for the payment of manufacturers’ excise taxes.

  1. If a contract requires one (1) party to reimburse another party for taxes levied under Part III of Subchapter A of Chapter 32 of the Internal Revenue Code, the party making the reimbursement, at its option, shall not be required to reimburse the other party more than one (1) business day before the other party is required to remit the taxes to the Internal Revenue Service.
  2. If a party chooses to exercise its option under subsection (1) of this section, and provision is not already provided in the contract, the party shall notify the other party in writing of its intention. The option may not be exercised until at least thirty (30) days after the written notification or the beginning of the next federal tax quarter, whichever is later.
  3. The party to be reimbursed under subsection (1) of this section may require security from the reimbursing party for the payment of the taxes in proportion to the amount the taxes represent compared to the security required on the contract as a whole. The party to be reimbursed shall not change other payment terms of the contract due to the timing of the tax reimbursement, but may require the taxes to be reimbursed by electronic transfer of funds.

History. Enact. Acts 2004, ch. 143, § 1, effective July 13, 2004.

Compiler’s Notes.

Chapter 32, Subchapter A, Part III of the Internal Revenue Code, referred to in subsection (1), is codified as 26 USCS § 4081 et seq.

Legislative Research Commission Note.

(7/13/2004). 2004 Ky. Acts ch. 143, sec. 2, provides that 2004 Ky. Acts ch. 143, which created this statute, “applies to all continuing contracts now in effect that have no expiration date and all contracts entered into or renewed after the effective date of this Act.” 2004 Ky. Acts ch. 143 became effective on July 13, 2004.

371.180. Construction services contracts.

  1. As used in this section:
    1. “Construction services contract” means:
      1. A contract or agreement relating to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition connected therewith; or
      2. A contract or agreement relating to the planning, design, administration, study, evaluation, consulting, or other professional and technical support services provided in connection with any of the work or activities described in subparagraph 1. of this paragraph.
    2. “Contractor” means the person offering a contract for services provided.
    3. “Contractee” means the person providing services under a contract.
  2. Any provision contained in any construction services contract purporting to indemnify or hold harmless a contractor from that contractor’s own negligence or from the negligence of his or her agents, or employees is void and wholly unenforceable.
  3. This section does not apply to construction bonds or affect the validity of insurance contracts.
  4. This section does not affect contracts or agreements entered into before June 20, 2005.

History. Enact. Acts 2005, ch. 156, § 1, effective June 20, 2005.

371.190. Obligation of debtor not extinguished or affected by internal actions of creditor.

  1. The obligation of a debtor or obligor to pay or satisfy a debt, liability, or other obligation, including an obligation to pay interest, is not extinguished or otherwise adversely affected, in whole or in part, by any internal action or reporting of internal actions taken by the creditor or other obligee for purposes of the creditor or obligee’s own financial, tax, or accounting records or affairs, including but not limited to treating the debt, liability, or other obligation as not collectible.
  2. Nothing in this section shall preclude the debtor or obligor, in any event, from proving that it has fully or partially paid or otherwise satisfied the debt, liability, or other obligation in accordance with the terms of the debt, liability, or other obligation.

HISTORY: 2018 ch. 140, § 2, effective July 14, 2018.

Installment Sales Contracts

371.210. Definitions for KRS 371.210 to 371.330.

As used in KRS 371.210 to 371.330 , unless the context otherwise requires:

  1. “Goods” means all tangible chattels personal when purchased primarily for personal, family or household use and not for commercial, industrial or agricultural use, but not including motor vehicles as herein defined, money, things in action or intangible personal property other than merchandise certificates or coupons as herein described. The term includes such chattels which are furnished or used, at the sale of or subsequently, in the modernization, rehabilitation, repair, alteration, improvement or construction of real property as to become a part thereof whether or not severable therefrom. The term also includes merchandise certificates or coupons, issued by a retail seller, not redeemable in cash and to be used in their face amount in lieu of cash.
  2. “Services” means work, labor or services of any kind when purchased primarily for personal, family or household use and not for commercial or business use, but not including services for which the prices charged are required by law to be determined or approved by or to be filed, subject to approval or disapproval, with the United States or any state, or any department, division, agency, officer or official of either as in the case of transportation services.
  3. “Motor vehicle” means any automobile, mobile home, recreational vehicle, motorcycle, truck trailer, semitrailer, truck tractor and bus designed and used primarily to transport persons or property on a public highway, or any vehicle designed to run only on rails or tracks or in the air, excepting however, any boat trailer and any vehicle propelled or drawn exclusively by muscular power.
  4. “Retail buyer” or “buyer” means a person who buys or agrees to buy goods or obtain services or agrees to have services rendered or furnished, from a retail seller.
  5. “Retail seller” or “seller” means a person regularly and principally engaged in the business of selling goods to retail buyers.
  6. “Retail installment transaction” means any transaction in which a retail buyer purchases goods or services from a retail seller pursuant to a retail installment contract or a retail charge agreement, as defined in this section, which provides for a time price differential, as defined in this section, and under which the buyer agrees to pay the unpaid balance in one (1) or more installments.
  7. “Retail installment contract” means an instrument, other than a retail charge agreement or an instrument reflecting a sale made pursuant thereto, entered into in this state evidencing a retail installment transaction. The term “retail installment contract” may include a chattel mortgage, a security agreement, a conditional sale contract and a contract in the form of a bailment or a lease if the bailee or lessee contracts to pay as compensation for their use a sum substantially equivalent to or in excess of the value of the goods sold and if it is agreed that the bailee or lessee is bound to become, or for no other or a merely nominal consideration, has the option of becoming the owner of the goods upon full compliance with the provisions of the bailment or lease.
  8. “Retail charge agreement” means an instrument prescribing the terms of retail installment transactions which may be made thereunder from time to time and under the terms of which a time price differential, as defined in this section, is to be computed in relation to the buyer’s unpaid balance from time to time.
  9. “Time price differential” however denominated or expressed, means the amount which is paid or payable for the privilege of purchasing goods or services to be paid for by the buyer in installments over a period of time. It does not include the amount, if any, charged for insurance premiums, delinquency charges, attorneys fees, court costs, or official fees.
  10. “Cash sale price” means the price stated in a retail installment contract or in a sales slip or other memorandum furnished by a retail seller to a retail buyer under or in connection with a retail charge agreement, for which the seller would have sold or furnished to the buyer and the buyer would have bought or obtained from the seller the goods or services which are the subject matter of a retail installment transaction, if the sale had been a sale for cash. The cash sale price may include any taxes and charges for delivery, installation, servicing, repairs, alterations or improvements.
  11. “Official fees” means the amount of the fees prescribed by law for filing, recording or otherwise perfecting, and releasing or satisfying, a retained title, lien or other security interest created by a retail installment transaction.
  12. “Time sale price” means the total of the cash sale price of the goods or services and the amount, if any, included for insurance, if a separate identified charge is made therefor, and the official fees and the time price differential.
  13. “Principal balance” means the cash sale price of the goods or services which are the subject matter of a retail installment contract plus the amounts, if any, included therein, if a separate identified charge is made therefor and stated in the contract, for insurance and official fees, less the amount of the buyer’s down payment in money or goods or both.
  14. “Holder” means the retail seller of the goods or services under the retail installment contract or retail charge agreement or the assignee if the retail installment contract or the retail charge agreement or any indebtedness under either has been sold or otherwise transferred.
  15. “Person” means an individual, partnership, joint venture, corporation, association or any other group, however organized.
  16. Words of the masculine gender include the feminine and the neuter and, when the sense so indicates, words of the neuter gender may refer to any gender.

History. Enact. Acts 1962, ch. 136, § 1; 1982, ch. 395, § 23, effective July 15, 1982.

NOTES TO DECISIONS

1. Commercial Vehicle Loan.

A loan on commercial motor vehicles is completely outside any possible reach of KRS 371.210 to 371.330 which deal with retail installment sales. Credit Alliance Corp. v. Adams Constr. Corp., 570 S.W.2d 283, 1978 Ky. LEXIS 389 ( Ky. 1978 ).

2. Time Price Differential.

In a contract case, there was no error in a default judgment that limited post-judgment interest on a retail installment contract to 12 percent per annum because a purchaser did not agree to the accrual of interest at any rate, much less at a rate in excess of the statutory rate; the purchaser agreed only to buy a vehicle at a price determined by adding the cost of the vehicle if she had paid cash and the time price differential. Moreover, the court could not deviate from the 12 percent rate because the claim here was for liquidated damages. Serv. Fin. Co. v. Ware, 2015 Ky. App. LEXIS 47 (Ky. Ct. App. Apr. 10, 2015), op. withdrawn, sub. op., 473 S.W.3d 98, 2015 Ky. App. LEXIS 110 (Ky. Ct. App. 2015).

Opinions of Attorney General.

In the ordinary course of conduct of the business of a dentist, he will not be subject to the Retail Installment Sales Act. OAG 63-477 .

A hospital’s services would not bring it under the provisions of this section. OAG 72-721 .

Regardless of whether a charge for consumer credit is called a service charge or interest, a professional, such as a doctor or attorney, who desires to make a “credit” charge for his services must comply with the applicable provisions of the consumer credit law. OAG 76-664 .

Retail installment sales of mobile homes would not fall within the ambit of KRS Chapter 190 which sets out the provisions for installment contract sales for motor vehicles whose cash sale price is $5,000 or less, because mobile homes do not fall within the category of motor vehicles as defined in KRS 190.090(4), and are therefore covered by the provisions of KRS 371.210 et seq. OAG 80-51 .

Since the legislature has not specifically provided for an advance agreement that attorney’s fees of 15 percent shall be paid by the purchaser upon default for contracts made pursuant to KRS 371.210 et seq., such a provision would be void and unenforceable and should not be included in a retail installment sale contract. OAG 80-51 .

Where the cash sale price of a stationary mobile home is $5,000 or less, the provisions of the Motor Vehicle Retail Installment Sales Act KRS 190.090 to 190.140 apply; where the cash price of stationary mobile homes exceeds $5,000, the provisions of the Installment Sales Contracts Act, KRS 371.210 to 371.330 . OAG 80-111 . But see OAG 80-51 .

Research References and Practice Aids

Cross-References.

Provisions concerning motor vehicle sales, KRS Ch. 190.

Kentucky Law Journal.

Note, Kentucky Retail Installment Sales Act, 52 Ky. L.J. 448 (1964).

Stengel, Should States Adopt the Uniform Consumer Credit Code?, 60 Ky. L.J. 8 (1971).

Kentucky Law Survey, Weinberg, Commercial Law and Consumer Credit, 65 Ky. L.J. 370 (1976-77).

371.220. Requisites of retail installment contract.

  1. Each retail installment contract shall be in writing, dated, signed by the retail buyer, and completed as to all essential provisions, except as otherwise provided in KRS 371.250 .
  2. The printed or typed portion of the contract, other than instructions for completion, shall be in a size equal to at least eight (8) point type. The contract shall be designated “Retail Installment Contract” and shall contain substantially the following notice printed or typed in a size equal to at least ten (10) point bold type: “NOTICE TO THE BUYER. DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE CONTRACT YOU SIGN.”
  3. The retail seller shall deliver to the retail buyer, or mail to him at his address shown on the retail installment contract, a copy of the contract as accepted by the seller. Until the seller does so, a buyer, who has not received delivery of the goods or been furnished or rendered the services, shall have the right to rescind his contract and to receive a refund of all payments made and return of all goods traded in to the seller on account of or in contemplation of the contract, or if such goods cannot be returned, the value thereof. Any acknowledgment by the buyer of delivery of a copy of the contract shall be in a size equal to at least ten (10) point bold type and, if contained in the contract, shall appear directly above the buyer’s signature.
  4. The retail installment contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or other address of the buyer as specified by the buyer and a description or identification of the goods sold or to be sold, or services furnished or rendered or to be furnished or rendered.
  5. The retail installment contract shall contain the following items:
    1. The cash sale price of the goods or services;
    2. The amount of the buyer’s down payment, identifying the amounts paid in money and allowed for goods traded in;
    3. The difference between items (a) and (b);
    4. The aggregate amount, if any, included for insurance, if a separate identified charge is made therefor, specifying the type or types of insurance and the term or terms of coverage;
    5. The aggregate amount of official fees;
    6. The principal balance, which is the sum of items (c), (d) and (e);
    7. The amount of the time price differential; and
    8. The amount of the time balance owed by the buyer to the seller, which is the sum of items (f) and (g) and, except as otherwise provided in the next two (2) sentences, the maximum number of installment payments required and the amount of each installment and the due date of each payment necessary to pay such balance. If installment payments other than the final payment are stated as a series of equal scheduled amounts and if the amount of the final installment payment does not substantially exceed the scheduled amount of each preceding installment payment, the maximum number of payments and the amount and due date of each payment need not be separately stated and the amount of the scheduled final installment payment may be stated as the remaining unpaid balance. The due date of the first installment payment may be fixed by a day or date or may be fixed by reference to the date of the contract or to the time of delivery or installation.

The above items need not be stated in the sequence or order set forth; additional items may be included to explain the computations made in determining the amount to be paid by the buyer.

History. Enact. Acts 1962, ch. 136, § 2, subsections (1) to (5).

Research References and Practice Aids

Cross-References.

Certain items not required when contracts made by mail, KRS 371.240 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Various Defenses Based upon Writing or Signature Formalities or Lack of Definiteness, Form 210.16.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Breach of Written Contract (General Form), Form 210.04.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Contracts, § 210.00.

371.230. Contracts composed of more than one document.

A retail installment contract need not be contained in a single document. If the contract is contained in more than one (1) document, one (1) such document shall be an original document signed by the retail buyer, stated to be applicable to purchases of goods or services to be made by the retail buyer from time to time. In such case such document, together with the sales slip, account book or other written statement relating to each purchase, shall set forth all of the information required by KRS 371.220 to 371.290 and shall constitute the retail installment contract for each purchase. On each succeeding purchase pursuant to such original document, the sales slip, account book or other written statement may at the option of the seller constitute the memorandum required by KRS 371.290 .

History. Enact. Acts 1962, ch. 136, § 2, subsection (6).

371.240. Contracts made by mail.

  1. Retail installment contracts negotiated and entered into by mail without personal solicitation by salesmen or other representatives of the seller and based upon a catalog of the seller, or other printed solicitation of business, if such catalog or other printed solicitation clearly sets forth the cash sale prices and other terms of sales to be made through such medium, may be made as provided in this section. The provisions of KRS 371.210 to 371.330 with respect to retail installment contracts shall be applicable to such sales, except that:
    1. The designation and notice provisions of subsection (2) of KRS 371.220 shall not be applicable to such contract; and
    2. The retail installment contract, when completed by the buyer, need not contain the items required by subsection (5) of KRS 371.220 .
  2. When the contract is received from the retail buyer, the seller shall prepare a written memorandum containing all of the information required by subsection (5) of KRS 371.220 to be included in a retail installment contract. In lieu of delivering a copy of the contract to the retail buyer as provided in subsection (3) of KRS 371.220 , the seller shall deliver to the buyer a copy of such memorandum prior to the due date of the first installment payable under the contract.

History. Enact. Acts 1962, ch. 136, § 2, subsection (7).

371.250. Contract not to be signed in blank — Acknowledgment of delivery of copy.

A retail installment contract shall not be signed by any party thereto when it contains blank spaces of items which are essential provisions of the transaction; provided, however, if delivery of the goods is not made at the time of the execution of the contract, the identifying numbers or marks of the goods or similar information and the due date of the first installment may be inserted by the seller in the seller’s counterpart of the contract after it has been signed by the buyer. The buyer’s acknowledgment, conforming to the requirements of KRS 371.220 to 371.290 , of delivery of a copy of the contract shall be presumptive proof or, in the case of a holder of the contract without knowledge to the contrary when he purchases it, conclusive proof of such delivery and of compliance with this section in any action or proceeding.

History. Enact. Acts 1962, ch. 136, § 2, subsection (8).

371.260. Time price differential — Prepayment.

  1. Notwithstanding the provisions of any other law, a retail installment contract payable in substantially equal successive monthly installments beginning one (1) month from the date of the contract may provide for, and the seller or holder may then charge, collect, and receive a time price differential.
  2. Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may prepay in full the unpaid time balance thereof at any time before its final due date and, if he does so, shall receive a refund credit thereon for such prepayment. The amount of such refund credit shall represent at least as great a proportion of the original time price differential, after deducting therefrom a maximum of twenty dollars ($20), as (a) the sum of the monthly unpaid balances under the schedule of payments in the contract beginning as of the date after such prepayment which is the next succeeding monthly anniversary date of the due date of the first installment under the contract, or, if the prepayment is prior to the due date of the first installment under the contract, then as of the date after such prepayment which is the next succeeding monthly anniversary date of the date of the contract, bears to (b) the sum of all the monthly unpaid balances under the schedule of installment payments in the contract. Where the amount of refund credit is less than one dollar ($1), no refund credit need be made.

History. Enact. Acts 1962, ch. 136, § 2, subsections (9) and (10); 1996, ch. 59, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1. Applicability.

This section applies to retail installment sales transactions not including motor vehicles. Credit Alliance Corp. v. Adams Constr. Corp., 570 S.W.2d 283, 1978 Ky. LEXIS 389 ( Ky. 1978 ).

Opinions of Attorney General.

The “time price differential” referred to in subsection (1) of this section is not interest and is not within the terms of the usury laws. OAG 68-325 .

For indirect loans or purchases of installment paper under KRS 190.120 , 371.270(2) and subsection (2) of this section, KRS 287.215 expressly permits deduction of the $10.00 or $25.00 acquisition cost before computing the rebate due upon prepayment. The proportion or ratio is established “after” the acquisition cost is deducted. OAG 82-260 .

371.270. Charge for installment defaults — Refinancing options.

  1. The holder of any retail installment contract, if it so provides, may collect a delinquency and collection charge on each installment in default for a period of more than ten (10) days in the amount not to exceed five (5%) percent of each installment or ten dollars ($10), whichever is greater, provided that a minimum charge of one dollar ($1) may be made, or, in lieu thereof, interest after maturity on each such installment not to exceed the highest lawful contract rate.
  2. The holder of a retail installment contract upon request by the buyer, may agree to an amendment thereto to extend or defer the scheduled due date of all or any part of any installment or installments or to renew, restate or reschedule the unpaid balance of the contract, and may collect for same a refinance charge not to exceed an amount ascertained as provided under either of the following optional methods of computation:

  3. The amendment to the contract must be confirmed in a writing signed by the holder. The writing shall set forth the terms of the amendment and the new due dates and amounts of the installments, and shall either be delivered to the buyer or mailed to him at his address as shown on the contract. Said writing together with the original contract and any previous amendments thereto shall constitute the retail installment contract.

Option I. The refinance charge may be computed on the amount of the scheduled installment or installments extended or deferred for the period of extension or deferment at the rate of one and one-half percent (1.5%) per month; provided that a minimum deferment charge of one dollar ($1) shall be permitted. Such amendment may also include payment by the buyer of the additional cost to the holder of premiums for continuing in force any insurance coverages provided for in the contract until the end of such deferral period, and of any additional necessary official fees. Option II. The refinance charge may be computed as follows: The sum of the unpaid balance as of the refinancing date and the cost for any insurance and other benefits incidental to the refinancing, and for any additional necessary official fees and any accrued delinquency and collection charges, after deducting a refund credit as for prepayment pursuant to subsection (2) of , shall constitute a principal balance for such refinancing on which the refinance charge may be computed for the term of the refinanced contract at the applicable rate for finance charges. Acquisition costs under the refund schedule in subsection (2) of shall not apply in calculating refinance charges. KRS 371.260 KRS 371.260

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History. Enact. Acts 1962, ch. 136, § 2, subsection (11); 1996, ch. 59, § 2, effective July 15, 1996.

Opinions of Attorney General.

For indirect loans or purchases of installment paper under KRS 190.120 , 371.260(2) and subsection (2) of this section, KRS 287.215 expressly permits deduction of the $10.00 or $25.00 acquisition cost before computing the rebate due upon prepayment. The proportion or ratio is established “after” the acquisition cost is deducted. OAG 82-260 .

371.280. Written statement of payments and amount unpaid.

Upon written request of the buyer, the holder of a retail installment contract shall give or forward to the buyer a written statement of the dates and amounts of payments and the total amount unpaid under the contract. A buyer shall be given a written receipt for any payment when made in cash. Such a statement or receipt shall be given the buyer once without charge; if any additional statement is requested by the buyer, it shall be supplied by the holder at a charge not in excess of one dollar ($1) for each additional statement or receipt so supplied.

History. Enact. Acts 1962, ch. 136, § 2, subsection (12).

371.290. Consolidation of subsequent purchases with existing contract — Memorandum — Allocation of payments.

  1. If, in a retail installment transaction, a retail buyer makes any subsequent purchases of goods or services from a retail seller from whom he has previously purchased goods or services under one or more retail installment contracts, and the amounts under such previous contract or contracts have not been fully paid, the subsequent purchases may, at the seller’s option, be included in and consolidated with one or more of the previous contract or contracts. Each subsequent purchase shall be a separate retail installment contract under KRS 371.210 to 371.330 , notwithstanding that the same may be included in and consolidated with one or more of such previous contract or contracts. All the provisions of KRS 371.210 to 371.330 with respect to retail installment contracts shall be applicable to such subsequent purchases except as stated in subsections (2) to (7) of this section.
  2. In the event of such consolidation, in lieu of the buyer’s executing a retail installment contract respecting each subsequent purchase, as provided in KRS 371.220 to 371.290 , it shall be sufficient if the seller shall prepare a written memorandum of each subsequent purchase, in which case the provisions of subsections (1), (2), (3), and (4) of KRS 371.220 shall not be applicable. Unless previously furnished in writing to the buyer by the seller, by sales slip, memoranda, or otherwise, such memorandum shall set forth with respect to each subsequent purchase the following:
    1. The cash sale price of the goods or services;
    2. The amount of the buyer’s down payment, identifying the amounts paid in money and allowed for goods traded in;
    3. The difference between items (a) and (b);
    4. The aggregate amount, if any, included for insurance, if a separate identified charge is made therefor, specifying the type or types of insurance and the term or terms of coverage;
    5. The aggregate amount of official fees;
    6. The principal balance, which is the sum of items (c), (d), and (e);
    7. The amount or rate of the time price differential;
    8. The amount of the time balance owed by the buyer to the seller, which is the sum of items (f) and (g);
    9. The outstanding balance of the previous contract or contracts;
    10. The consolidated time balance, which is the sum of items (h) and (i);
    11. The revised installments applicable to the consolidated time balance, if any. The seller shall deliver to the buyer a copy of such memorandum prior to the due date of the first installment of such consolidated contract.
  3. When such subsequent purchases are made, if the seller has retained title or taken a lien or other security interest in any of the goods purchased under any one of the contracts included in the consolidation.
  4. The entire amount of all payments made prior to such subsequent purchases shall be deemed to have been applied on the previous purchases.
  5. Each payment after such subsequent purchases made on this consolidated contract shall be deemed to have been allocated to all of the various purchases in the same ratio as the original cash sale prices of the various purchases bear to the total of all.
  6. Where the amount of each installment payment is increased in connection with such subsequent purchases, at the seller’s option, the subsequent payments may be deemed to be allocated as follows: an amount equal to the original periodic payment to the previous purchase, the balance to the subsequent purchase. However, the amount of any down payment on the subsequent purchase shall be allocated in its entirety to such subsequent purchase.
  7. The provisions of subsections (3), (4), (5), and (6) of this section shall not apply to cases where such previous and subsequent purchases involve equipment, parts, or other goods attached or affixed to goods previously purchased and not fully paid, or to services in connection therewith rendered by the seller at the buyer’s request.

History. Enact. Acts 1962, ch. 136, § 2, subsection (13).

371.300. Requisites of retail charge agreement.

  1. Each retail charge agreement shall be in writing and signed or accepted by the buyer. A retail charge agreement shall be deemed to be signed or accepted by the buyer if, after a request for a retail charge account, the agreement or application for a retail charge account is in fact signed by the buyer, or if the retail charge account is used by the buyer, or if the retail charge account is used by another person authorized by the buyer to use it. The agreement shall not become effective until the buyer has received the disclosures required pursuant to the Federal Truth-in-Lending Act, 15 U.S.C. secs. 1601 et seq., and the buyer or person authorized by the buyer uses the retail charge account. A copy of any such agreement executed or accepted by the buyer on or after January 1, 1963, shall be delivered or mailed to the buyer by the seller prior to the date on which the first payment is due thereunder. Any acknowledgment by the buyer of delivery of a copy of the agreement contained in the body thereof shall be in a size equal to at least ten (10) point bold type and shall appear directly above the buyer’s signature. No agreement executed on or after January 1, 1963, shall be signed or accepted by the buyer when it contains blank spaces to be filled in after it has been signed. The buyer’s acknowledgment, conforming to the requirements of this subsection, of delivery of a copy of an agreement, shall be presumptive proof, in any action or proceeding, of such delivery and that the agreement, when signed or accepted, did not contain any blank spaces as provided in KRS 371.210 to 371.330 . All retail charge agreements executed on or after January 1, 1963, shall state the maximum amount or rate of the time price differential to be charged and paid pursuant thereto. Any such agreement shall contain substantially the following notice printed or typed in a size equal to at least ten (10) point bold type: “NOTICE TO THE BUYER — DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE AGREEMENT YOU SIGN.”
  2. The seller shall promptly supply the buyer under the retail charge agreement with a statement as of the end of each monthly period, which need not be a calendar month, or other regular period agreed upon in writing by the seller and the buyer, in which there is any unpaid balance thereunder, which statement shall recite the following:
    1. The unpaid balance under the retail charge agreement at the beginning and at the end of the period;
    2. Unless otherwise furnished by the seller to the buyer by sales slip, memorandum, or otherwise, a description or identification of the goods or services purchased during the period, the cash sale price and the date of each purchase;
    3. The payments made by the buyer to the seller and any other credits to the buyer during the period;
    4. The amount, if any, of any time price differential for such period; and
    5. A legend to the effect that the buyer may at any time pay his total unpaid balance or any part thereof.
  3. A retail charge agreement may provide for, and the seller or holder may then, notwithstanding the provisions of any other law, charge, collect and receive, in addition to the cash price, a time price differential for the privilege of paying in installments thereunder.
  4. The holder of a retail charge agreement, if it so provides, may collect a delinquency and collection charge on each minimum payment in default for a period of more than ten (10) days in an amount not to exceed five percent (5%) of each minimum payment, or ten dollars ($10), whichever is greater.

History. Enact. Acts 1962, ch. 136, § 3; 1996, ch. 59, § 3, effective July 15, 1996.

371.310. Assignment of contracts and agreements.

Notwithstanding the provisions of any other law:

  1. An assignee may purchase or acquire or agree to purchase or acquire any retail installment contract or retail charge agreement or any indebtedness under either from a seller on such terms and conditions and for such price as may be mutually agreed upon;
  2. Filing of the assignment, notice to the buyer of the assignment and any requirement that the seller be deprived of dominion over payments upon a retail installment contract or retail charge agreement, or over the goods if returned to or repossessed by the seller, shall not be necessary to the validity of a written assignment of the retail installment contract or retail charge agreement or any indebtedness under either as against creditors, subsequent purchasers, pledgees, mortgagees and lien claimants of the seller; and
  3. Unless the buyer has notice of the assignment of his retail installment contract, retail charge agreement or any indebtedness under either, payment therefor made by the buyer to the holder last known to him shall be binding upon all subsequent holders.

History. Enact. Acts 1962, ch. 136, § 4.

Opinions of Attorney General.

Since, under this section, banks may purchase retail installment sales contracts or retail charge agreements made between a retailer and a purchaser pursuant to KRS 371.210 et seq. from the retailer seller, banks may take over contracts made between the retailer and the purchaser, and may collect a time price differential as set out in such contracts even though the time price differential exceeds the six-add rate which would be permitted to the bank had it directly loaned the money to the purchaser pursuant to KRS 287.215 . OAG 80-51 .

371.320. Prior acts and agreements of retail buyer do not waive requirements of KRS 371.210 to 371.330.

No act or agreement of the retail buyer before or at the time of the making of a retail installment contract, retail charge agreement or purchases thereunder shall constitute a valid waiver of any of the provisions of KRS 371.210 to 371.330 or of any remedies granted to the buyer by law.

History. Enact. Acts 1962, ch. 136, § 5.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Weinberg, Commercial Law and Consumer Credit, 65 Ky. L.J. 370 (1976-77).

371.325. Operation of waiver of defense clause as to defense acquired in third party materialmen’s lien.

No waiver of defense clause in any retail installment contract shall operate to cut off any defense that an owner-occupant of a single or double family dwelling or the appurtenances or additions thereto may have acquired by virtue of a third party materialmen’s lien under KRS 376.010(4).

History. Enact. Acts 1974, ch. 173, § 2.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Weinberg, Commercial Law and Consumer Credit, 65 Ky. L.J. 370 (1976-77).

371.330. KRS 371.210 to 371.330 do not affect validity of pre-1963 contracts.

The provisions of KRS 371.210 to 371.330 shall not invalidate or make unlawful retail installment contracts or retail charge agreements executed prior to January 1, 1963.

History. Enact. Acts 1962, ch. 136, § 7.

Sales Representatives’ Contracts

371.370. Definitions for KRS 371.375 to 371.385.

As used in KRS 371.375 to 371.385 , unless the context otherwise requires:

  1. “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a specified amount per order or per sale.
  2. “Person” means an individual, corporation, partnership, association, estate, or trust.
  3. “Principal” means a person who does not have a permanent or fixed place of business in this state and who:
    1. Manufactures, produces, imports, or distributes a tangible product for wholesale;
    2. Contracts with a sales representative to solicit orders for the product; and
    3. Compensates the sales representative, in whole or in part, by commission.
  4. “Sales representative” means a person who:
    1. Contracts with a principal to solicit wholesale orders;
    2. Is compensated, in whole or in part, by commission;
    3. Does not place orders or purchase for his own account or for resale; and
    4. Does not sell or take orders for the sale of products to the ultimate consumer.

History. Enact. Acts 1988, ch. 167, § 1, effective July 15, 1988.

NOTES TO DECISIONS

1. Constitutionality.

Defendant Tennessee corporation’s motion to dismiss charge that it violated Kentucky Sales Representatives’ Contracts Statute was granted because subsection (3) of this section, defining “principal” as person who did not have permanent or fixed place of business in Kentucky, and KRS 371.375 are unconstitutional under Commerce Clause and Equal Protection Clause of U.S. Constitution. Cecil v. Duck Head Apparel Co., 895 F. Supp. 155, 1995 U.S. Dist. LEXIS 15840 (W.D. Ky. 1995 ).

371.375. Termination of contract — Civil action — Liability of principal or sales representative.

  1. When a contract between a sales representative and a principal is terminated for any reason, the principal shall pay the sales representative all commissions accrued under the contract to the sales representative within thirty (30) days after the effective date of such termination.
  2. A principal who fails to comply with the provisions of subsection (1) of this section shall be liable to the sales representative in a civil action for:
    1. All amounts due the sales representative, plus exemplary damages in an amount not to exceed two (2) times the amount of commissions due the sales representative; and
    2. Attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.
  3. Where the court determines that an action brought by a sales representative against a principal under KRS 371.370 to 371.385 is frivolous, the sales representative shall be liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
  4. Nothing in KRS 371.370 to 371.385 shall invalidate or restrict any additional right or remedy available to a sales representative or preclude a sales representative from seeking to recover in an action on any other claim against a principal.

History. Enact. Acts 1988, ch. 167, § 2, effective July 15, 1988.

NOTES TO DECISIONS

1. Constitutionality.

Defendant Tennessee corporation’s motion to dismiss charge that it violated Kentucky Sales Representatives’ Contracts Statute was granted because subsection (3) of KRS 371.370 , defining “principal” as person who did not have permanent or fixed place of business in Kentucky, and this section are unconstitutional under Commerce Clause and Equal Protection Clause of U.S. Constitution. Cecil v. Duck Head Apparel Co., 895 F. Supp. 155, 1995 U.S. Dist. LEXIS 15840 (W.D. Ky. 1995 ).

371.380. Personal jurisdiction over nonresident principal.

A principal who is not a resident of this state that contracts with a sales representative to solicit orders in this state is declared to be doing business in this state for purposes of the exercise of personal jurisdiction over nonresidents under KRS Chapter 454.

History. Enact. Acts 1988, ch. 167, § 3, effective July 15, 1988.

371.385. Waiver provisions to be void.

A provision in any contract between a sales representative and a principal purporting to waive any provision of KRS 371.370 to 371.385 , whether by expressed waiver or by a contract subject to the laws of another state, shall be void.

History. Enact. Acts 1988, ch. 167, § 4, effective July 15, 1988.

NOTES TO DECISIONS

Cited:

Cecil v. Duck Head Apparel Co., 895 F. Supp. 155, 1995 U.S. Dist. LEXIS 15840 (W.D. Ky. 1995 ).

Kentucky Fairness in Construction Act

371.400. Definitions for KRS 371.400 to 371.425.

As used in KRS 371.400 to 371.425 :

  1. “Construction” means the process of building, altering, repairing, improving, or demolishing any structures or buildings, or other improvements of any kind to any real property, but does not include processing equipment used for the process of manufacturing or the routine maintenance of existing structures, buildings, or real property;
  2. “Contract” means a contract or agreement concerning construction made and entered into by and between a contracting entity and a contractor, a contractor and a subcontractor, or a subcontractor and another subcontractor;
  3. “Contracting entity” means an owner of real property; a trustee or agent of an owner of real property; or a public official, public authority, or other public entity authorized to contract under the Kentucky Revised Statutes;
  4. “Contractor” means a person performing construction and having a contract with a contracting entity;
  5. “Disputed amount” means to question in good faith the validity, either in whole or part, of a request for payment asserted by any party;
  6. “Owner” means a person who holds an ownership interest in real property;
  7. “Person” means an individual, corporation, estate, trust, partnership, limited liability company, association, joint venture, or any other legal entity;
  8. “Processing equipment” means equipment which uses physical or chemical methods to increase the value of a raw material or product and is installed by the person contractually responsible to the contracting entity for the design, purchase, installation, and performance of that equipment;
  9. “Retainage” means money earned by a contractor or subcontractor but withheld to ensure proper performance by the contractor or subcontractor and that shall be paid upon completion of contractual obligations;
  10. “Subcontractor” means any person performing construction covered by a contract between a contracting entity and a contractor who does not have a contract with the contracting entity; and
  11. “Undisputed amount” means a good faith, valid, accurate, timely request for payment which has been submitted to any entity owing money, that the recipient of the request for payment has reviewed and agrees that the money is due and owing.

History. Enact. Acts 2007, ch. 136, § 1, effective June 26, 2007.

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, The Fairness in Construction Act, Vol. 71, No. 5, Sept. 2007, Ky. Bench & Bar 20.

Northern Kentucky Law Review.

2012 General Law Issue: Article: One Small Step in Mindset, One Giant Leap for the Construction Law Industry: How the Judicial Stage is Set for IPD and the Only Thing Missing is Willing Participants, 39 N. Ky. L. Rev. 557 (2012).

371.405. Conditions governing enforceability of construction contracts — Payment of amounts due.

  1. All payments on construction contracts entered into after June 26, 2007, shall be made pursuant to the terms of the contract and as required in this section and KRS 371.410 .
  2. The following provisions in a contract for construction shall be against the public policy of this Commonwealth and shall be void and unenforceable:
    1. A provision that purports to waive, release, or extinguish the right to resolve disputes through litigation in court or substantive or procedural rights in connection with such litigation, except that a contract may require binding arbitration as a substitute for litigation or require nonbinding alternative dispute resolution as a prerequisite to litigation;
    2. A provision that purports to waive, release, or extinguish rights provided by KRS Chapter 376, with the exception of partial waivers of lien rights provided by the contractor or subcontractor for progress payments; or
    3. A provision that purports to waive, release, or extinguish the right of a contractor or subcontractor to recover costs, additional time, or damages, or obtain an equitable adjustment of the contract, for delays in performing the contract that are, in whole or part, within the control of the contracting entity. Unusually bad weather that cannot be reasonably anticipated, fire, or other act of God shall not automatically entitle the contractor to additional compensation under this paragraph.
  3. Subsection (2)(c) of this section shall not render null, void, and unenforceable a contract provision that:
    1. Permits a contractor or subcontractor to recover that portion of delay costs caused by acts or omissions of the contracting entity;
    2. Requires notice of any delay by the party affected by the delay;
    3. Provides for reasonable liquidated damages;
    4. Provides for arbitration or any other procedure designed to resolve contract disputes; or
    5. Specifies which costs are recoverable by a contractor or subcontractor for delay.
  4. If a provision of a construction contract is found to be null and unenforceable, that provision shall not affect other provisions of the contract that are in compliance with this section and, to this end, the provisions of the contract are severable.
  5. Except as provided in subsection (7) of this section, all contracts for construction shall provide that payment of amounts due a contractor from a contracting entity, except retainage, shall be made within thirty (30) business days after the contracting entity receives a timely, properly completed, undisputed request for payment.
  6. Except as provided in subsection (7) of this section, if the contracting entity fails to pay a contractor within thirty (30) business days following receipt of a timely, properly completed, undisputed request for payment, the contracting entity shall pay interest to the contractor beginning on the thirty-first business day after receipt of the request for payment, computed at the rate of twelve percent (12%) per annum on the unpaid amount. Twenty-five (25) business days following the submission of a timely, properly completed, undisputed request for payment, the contractor shall notify the contracting entity by certified mail if payment has not been received. The notice shall also include the date on which interest shall begin to accrue.
  7. For purposes of subsections (5) and (6) of this section, a postsecondary institution and a board of education shall have forty-five (45) business days to make the payment required by those subsections. For purposes of payments by a board of education, the Department of Education shall have ten (10) business days, including the day the undisputed request for payment is received, to complete the final approval and application for payment and return it to the board of education. The ten (10) business days shall be included in the forty-five (45) business days. If the contracting entity fails to pay a contractor within forty-five (45) business days after receipt of the timely, properly completed, undisputed request for payment, the contracting entity shall, beginning on the forty-sixth day after receipt of the request, pay interest to the contractor computed at the rate of twelve percent (12%) per annum on the unpaid amount.
  8. A contractor shall pay its subcontractors any undisputed amounts due within fifteen (15) business days of receipt of payment from the contracting entity, including payment of retainage if retainage is released by the contracting entity, if the subcontractor has provided a timely, properly completed, and undisputed request for payment to the contractor.
  9. If a contractor fails to pay a subcontractor any undisputed amounts due within fifteen (15) business days of receipt of payment from the contracting entity, the contractor shall pay interest to the subcontractor beginning on the sixteenth business day after receipt of payment by the contractor, computed at the rate of twelve percent (12%) per annum on the unpaid amount.
  10. Subsections (8) and (9) of this section shall apply to all payments from subcontractors to their subcontractors.

History. Enact. Acts 2007, ch. 136, § 2, effective June 26, 2007.

NOTES TO DECISIONS

1. Allowed Damages.

Equipment rendered idle by a delay attributable to the owner who is determined to have breached the contract is a proper element of damages. Ford Contr., Inc. v. Ky. Transp. Cabinet, 429 S.W.3d 397, 2014 Ky. App. LEXIS 22 (Ky. Ct. App. 2014).

2. Interest.

Award of interest was proper because the amounts owed were not disputed by the managing contractor. D. W. Wilburn, Inc. v. Painting Co., 577 S.W.3d 782, 2019 Ky. App. LEXIS 66 (Ky. Ct. App. 2019).

371.410. Retainage that may be withheld — Release of retainage — Substantial completion.

  1. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, until fifty percent (50%) of the construction project has been completed in accordance with the contract, a contracting entity, contractor, or subcontractor may withhold no more than ten percent (10%) retainage from the amount of any undisputed payment due, and retainage held after fifty-one percent (51%) of the construction project has been completed shall not be more than five percent (5%) of the total contract amount.
  2. Within thirty (30) days after substantial completion of a construction project, the contracting entity or contractor shall release the retainage less an amount equal to two hundred percent (200%) of the contracting entity’s reasonably estimated cost of the balance of any contractor’s or subcontractor’s contractually obligated, yet uncompleted, work remaining. The contracting entity’s agent shall determine the reasonably estimated cost due under this subsection. The contracting entity, contractor, and any subcontractor with work yet to be completed shall mutually agree with the schedule for completion of the work necessary for release of final payment. Within fifteen (15) business days after the retainage has been released by the contracting entity to the contractor, the contractor shall release to the subcontractors their proportional shares of the retainage. For purposes of this subsection, “substantial completion” is the point at which, as certified in writing by the contracting entity, a project is at the level of completion, in strict compliance with the contract, where:
    1. Necessary approval by public regulatory authorities has been given;
    2. The owner has received all required warranties and documentation; and
    3. The owner may enjoy beneficial use or occupancy and may use, operate, and maintain the project in all respects, for its intended purpose.

      Partial use or occupancy shall not necessarily result in the project being deemed substantially complete and shall not be evidence of substantial completion.

  3. If a contracting entity, contractor, or subcontractor fails to pay retainage, if any, pursuant to the terms of a contract or as required in this section, the contracting entity, contractor, or subcontractor shall pay interest to the contractor or subcontractor to whom payment was due, beginning on the first business day after the payment was due, at the rate of twelve percent (12%) per annum.

History. Enact. Acts 2007, ch. 136, § 3, effective June 26, 2007.

371.415. Award of costs and attorney’s fees in action to enforce KRS 371.400 to 371.425.

In any action to enforce KRS 371.400 to 371.425 , including arbitration, the court or arbitrator shall award costs and reasonable attorney’s fees to the prevailing party if the losing party is deemed to have acted in bad faith. For public construction contracts, recovery of attorney’s fees under this section shall be limited to the public contract rate for attorney’s fees. Venue of such an action shall be within the Commonwealth of Kentucky.

History. Enact. Acts 2007, ch. 136, § 4, effective June 26, 2007.

NOTES TO DECISIONS

1. Bad faith.

Evidence in the record supported the finding of bad faith because the circuit court made numerous and specific references to a managing contractor’s bad faith in its failure to compensate subcontractors for extra work performed at the job site. D. W. Wilburn, Inc. v. Painting Co., 577 S.W.3d 782, 2019 Ky. App. LEXIS 66 (Ky. Ct. App. 2019).

371.420. Short title for KRS 371.400 to 371.425 — Filing of mechanic’s lien by contractor.

  1. KRS 371.400 to 371.425 shall be known and may be cited as the Kentucky Fairness in Construction Act.
  2. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, after a judgment for the contractor against a contracting entity is entered by a court of competent jurisdiction, a contractor has sixty (60) days to file a mechanic’s lien as provided in KRS Chapter 376. The filing of this lien shall not preclude the contractor from seeking additional relief. This subsection shall not apply to public construction contracts with lien rights governed under KRS 376.250 .

History. Enact. Acts 2007, ch. 136, § 5, effective June 26, 2007.

371.425. Application of KRS 371.400 to 371.425.

  1. Except as provided in subsections (3) and (4) of this section,  KRS 371.400 to 371.425 shall apply to public construction and public works projects, and to private construction, excluding residential construction.
  2. KRS 371.400 to 371.425 shall apply to construction contracts entered into after  June 26, 2007.
  3. KRS 371.400 to 371.425 shall not apply to contracts entered into by a borrower of funds that are provided, insured, or guaranteed by the United States Department of Agriculture’s Rural Utilities Service, or financed under a lien accommodation by the Rural Utilities Service.
  4. KRS 371.400 to 371.425 shall not apply to any contract for construction of or relating to any facility as defined in KRS Chapter 278.

History. Enact. Acts 2007, ch. 136, § 6, effective June 26, 2007.

Penalties

371.990. Penalties.

  1. Any person who violates any of the provisions of KRS 371.130 , or assents to any such violation shall be fined not less than fifty (50) nor more than two hundred dollars ($200) for each offense.
  2. Any person who shall willfully and intentionally violate any provision of KRS 371.210 to 371.330 shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding five hundred dollars ($500) or by imprisonment for not more than six (6) months, or both.
  3. Any person who violates any provision of KRS 371.210 to 371.330 except as a result of an accidental or bona fide error shall be barred from the recovery of any time price differential, or any delinquency or collection charge under or in connection with the related installment contract or retail charge agreement; but the holder may nevertheless recover from the buyer an amount equal to the cash price of the goods or services and the cost to the seller or holder of any insurance included in the transaction.
  4. Notwithstanding the provisions of subsections (2), (3) and (4) of this section, any failure, other than a willful and intentional failure, to comply with any provision of KRS 371.210 to 371.330 may be corrected within ten (10) days after the holder is notified thereof in writing by the buyer and, if so corrected, neither the seller nor the holder is subject to any penalty under subsections (2), (3) and (4) of this section.

History. 4758a-3: amend. Acts 1962, ch. 136, § 6, subsections (2) to (4).

CHAPTER 372 Contracts Against Public Policy

372.005. Nonapplicability of chapter to legal gambling transactions.

The terms and provisions of this chapter do not apply to betting, gaming, or wagering that has been authorized, permitted, or legalized, including, but not limited to, all activities and transactions permitted under KRS Chapters 154A, 230, and 238.

History. Enact. Acts 2000, ch. 447, § 4, effective July 14, 2000.

Research References and Practice Aids

Kentucky Law Journal.

Soukup, Rolling the Dice on Precedent and Wagering on Legislation: The Law of Gambling Debt Enforceability in Kentucky after Kentucky Off-Track Betting, Inc. v. McBurney and KRS § 372.005 ., 95 Ky. L.J. 529 (2006/2007).

372.010. Gambling transactions void.

Every contract, conveyance, transfer or assurance for the consideration, in whole or in part, of money, property or other thing won, lost or bet in any game, sport, pastime or wager, or for the consideration of money, property or other thing lent or advanced for the purpose of gaming, or lent or advanced at the time of any betting, gaming, or wagering to a person then actually engaged in betting, gaming, or wagering, is void.

History. 1955.

NOTES TO DECISIONS

1. Construction.

The statutes against gaming should be strictly construed. Jacob v. Clark's Committee, 66 S.W. 37 ( Ky. 1901 ), rev'd, Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

Gaming, betting and lotteries are separate and distinct things. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

2. Applicability.

This section covers three situations: (1) payment of betting losses; (2) loans for the purpose of gaming; and (3) loans to persons then betting, gaming, or wagering. McDevitt v. Thomas, 130 Ky. 805 , 114 S.W. 273, 1908 Ky. LEXIS 322 ( Ky. 1908 ).

A contract with a real estate broker to procure bidders whereby the broker was to receive a commission if the land sold for a certain price and guaranteed such a price is valid and this section is not applicable. Dowell v. Pumphrey, 197 Ky. 59 , 246 S.W. 157, 1922 Ky. LEXIS 634 ( Ky. 1922 ).

An option to purchase a royalty interest in an oil and gas lease is not a gaming contract to which this section would apply. Garvin v. Steen, 243 Ky. 256 , 47 S.W.2d 1010, 1932 Ky. LEXIS 51 ( Ky. 1932 ).

Buying stock on margin is a commonly known and recognized method of dealing in stocks, and is not prohibited as gaming transaction denounced in this section. Griffith's Adm'x v. Miller, 285 Ky. 675 , 149 S.W.2d 11, 1941 Ky. LEXIS 454 ( Ky. 1941 ).

3. Power to Regulate Gambling.

The legislature possesses the power to prohibit and regulate all forms of gambling, provided that all persons similarly situated are treated alike. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

4. Betting on Horse Races.

Betting on horse races was not “gaming.” (decided under prior law) Cheek v. Commonwealth, 79 Ky. 359 , 2 Ky. L. Rptr. 339 , 1881 Ky. LEXIS 34 (Ky. Ct. App. 1881).

Betting on horse races is not “gaming.” Cheek v. Commonwealth, 100 Ky. 1 , 37 S.W. 152, 18 Ky. L. Rptr. 515 , 1896 Ky. LEXIS 134 ( Ky. 1 896).

Betting on horse races is not “gaming” but is betting or wagering. McDevitt v. Thomas, 130 Ky. 805 , 114 S.W. 273, 1908 Ky. LEXIS 322 ( Ky. 1908 ).

Checks written by the defendant to the plaintiff for bets on horse races, a promissory note executed in favor of the plaintiff, and any verbal assurances to pay were void and unenforceable. Kentucky Off-Track Betting v. McBurney, 993 S.W.2d 946, 1999 Ky. LEXIS 69 ( Ky. 1999 ).

There is no direct conflict between KRS 372.010 and KRS 230.215 and 230.380 ; the statutes in question address different issues and there is no basis to find that the legislature implicitly repealed KRS 372.010 simply because off-track betting is legal. Kentucky Off-Track Betting v. McBurney, 993 S.W.2d 946, 1999 Ky. LEXIS 69 ( Ky. 1999 ).

Where an executor failed to timely disallow a creditor’s claim on a promissory note issued to cover a horse racing debt, which was void and unenforceable under KRS 372.010 , a Circuit Court properly held that this failure converted the debt from one that was void into one that was required to be paid. DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

5. Lottery Tickets.

When one fraudulently obtained a winning lottery ticket from the holder, the latter could recover the money in the absence of a showing that the transaction took place in Kentucky or that the lottery was otherwise an illegal one. (decided under prior law) Martin v. Richardson, 94 Ky. 183 , 21 S.W. 1039, 14 Ky. L. Rptr. 847 , 1893 Ky. LEXIS 31 ( Ky. 1893 ).

The transfer of a lottery ticket or its proceeds from husband to wife without consideration is not tainted by the illegal purchase. Irwin v. Irwin, 107 Ky. 24 , 52 S.W. 927, 21 Ky. L. Rptr. 622 , 1899 Ky. LEXIS 128 ( Ky. 1899 ).

6. Wagering.

A betting which was prohibited specifically by law was nevertheless void as against public policy. (decided under prior law) Bevil v. Hix, 51 Ky. 140 , 1851 Ky. LEXIS 33 ( Ky. 1851 ).

It was not necessary, in order to constitute a bet, that the hazard of loss should be equal on both sides, or that the amount hazarded should be equal. (decided under prior law) Bevil v. Hix, 51 Ky. 140 , 1851 Ky. LEXIS 33 ( Ky. 1851 ).

The subject of a wager is immaterial. McDevitt v. Thomas, 130 Ky. 805 , 114 S.W. 273, 1908 Ky. LEXIS 322 ( Ky. 1908 ).

A wagering contract is one based upon a contingency by which one may lose but cannot gain or the other can gain but cannot lose. Dowell v. Pumphrey, 197 Ky. 59 , 246 S.W. 157, 1922 Ky. LEXIS 634 ( Ky. 1922 ).

7. Gaming.

Bona fide sales for future delivery were valid but fictitious sales for future delivery not intended to be performed, but intended to be settled according to price differences, constituted gaming and were void. (decided under prior law) Sawyer, Wallace & Co. v. Taggart, 77 Ky. 727 , 1879 Ky. LEXIS 40 ( Ky. 1879 ); Smith v. Western Union Tel. Co., 84 Ky. 664 , 2 S.W. 483, 8 Ky. L. Rptr. 672 , 1887 Ky. LEXIS 2 ( Ky. 1887 ); Beadles v. McElrath, 85 Ky. 230 , 3 S.W. 152, 8 Ky. L. Rptr. 848 , 1887 Ky. LEXIS 38 (Ky. Ct. App. 1887); Lyons v. Hodgen, 90 Ky. 280 , 13 S.W. 1076, 12 Ky. L. Rptr. 211 , 1890 Ky. LEXIS 81 ( Ky. 1890 ); Farmers' & D. Bank v. Unser, 13 Ky. L. Rptr. 965 .

Bona fide sales for future delivery are valid but fictitious sales for future delivery not intended to be performed, but intended to be settled according to price differences, constitute gaming and are void. Boyd Com. Co. v. Coates, 69 S.W. 1090, 24 Ky. L. Rptr. 730 , 1902 Ky. LEXIS 386 (Ky. Ct. App. 1902); Paducah Com. Co. v. Boswell, 83 S.W. 144, 26 Ky. L. Rptr. 1062 (1904); Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ); Timmons v. Timmons, 145 Ky. 259 , 140 S.W. 164, 1911 Ky. LEXIS 814 ( Ky. 1911 ); Lilienthal v. Carpenter, Baggott & Co., 148 Ky. 50 , 146 S.W. 2, 1912 Ky. LEXIS 383 ( Ky. 1912 ); John L. Dunlap & Co. v. Perry, 191 Ky. 290 , 230 S.W. 291, 1921 Ky. LEXIS 313 ( Ky. 1921 ); Johnson v. John F. Clark & Co., 224 Ky. 598 , 6 S.W.2d 1048, 1927 Ky. LEXIS 966 ( Ky. 1927 ); W. R. Craig & Co. v. Johnson, 225 Ky. 440 , 9 S.W.2d 110, 1928 Ky. LEXIS 796 ( Ky. 1928 ); Bass v. Simon, 241 Ky. 666 , 44 S.W.2d 587, 1931 Ky. LEXIS 140 ( Ky. 1931 ).

“Gaming” applies only to the betting upon the result of a game played with cards, dice, machine, wheel or other contrivance. McDevitt v. Thomas, 130 Ky. 805 , 114 S.W. 273, 1908 Ky. LEXIS 322 ( Ky. 1908 ).

One may be both bettor and stakeholder. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

8. Gambling Contract.

A gambling contract is one by which two (2) or more parties agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event. Dowell v. Pumphrey, 197 Ky. 59 , 246 S.W. 157, 1922 Ky. LEXIS 634 ( Ky. 1922 ).

9. Loans Used for Betting.

A promise to pay for property acquired for betting purposes by one then engaged in a dice game was void. (decided under prior law) Levy v. Perkins, 7 Ky. 505 , 1817 Ky. LEXIS 24 ( Ky. 1817 ); Brittain v. Duling, 54 Ky. 138 , 1854 Ky. LEXIS 58 ( Ky. 1854 ).

The vendor of property sold to be bet in a gaming transaction could not recover. (decided under prior law) Levy v. Perkins, 7 Ky. 505 , 1817 Ky. LEXIS 24 ( Ky. 1817 ); Colyer v. Ransom, 7 Ky. 552 , 1817 Ky. LEXIS 55 ( Ky. 1817 ); Brittain v. Duling, 54 Ky. 138 , 1854 Ky. LEXIS 58 ( Ky. 1854 ).

A contract for money lent at the time and place of gaming to one engaged therein was void. (decided under prior law) Lyon v. Respass, 11 Ky. 133 , 1822 Ky. LEXIS 46 ( Ky. 1822 ); Roberts v. Tennell, 19 Ky. 247 , 1826 Ky. LEXIS 42 ( Ky. 1826 ).

Two (2) bettors agreed to purchase two (2) watches, the winner to take the watches, the loser to pay for them. Since the vendor did not advance the watches for the purpose of gaming but for the purpose of sale, although he was informed of the bet, he could recover the price from the loser. (decided under prior law) HEIRONIMUS v. HARRIS, 53 Ky. 252 , 1853 Ky. LEXIS 71 (Ky. Ct. App. 1853).

A loan of money to be used for betting was void. (decided under prior law) Alfriend v. Hughes, 67 Ky. 40 , 1868 Ky. LEXIS 73 ( Ky. 1868 ).

One advancing money for another and betting said sum for himself and the other person upon a horse race, pursuant to agreement, cannot recover from the other his pro rata part of the loss. Central Trust & Safe Deposit Co. v. Respass, 112 Ky. 606 , 66 S.W. 421, 23 Ky. L. Rptr. 1905 , 1902 Ky. LEXIS 201 ( Ky. 1902 ).

A loan of money to be used for betting is void. Cooley v. Allen, 90 S.W. 1048, 28 Ky. L. Rptr. 982 (1906).

10. Loans to Repay Losses.

One could recover money loaned to another to pay previous gaming losses, if not privy to the games. (decided under prior law) McKinney v. Pope's Adm'r, 42 Ky. 93 , 1842 Ky. LEXIS 110 ( Ky. 1842 ).

One who paid the gaming debt of another at his request could recover from the loser the amount paid, if not privy to the game prior to the time of payment, although he had prior knowledge of it. (decided under prior law) Greathouse v. Throckmorton, 30 Ky. 16 , 1831 Ky. LEXIS 299 ( Ky. 1831 ); English v. Young, 49 Ky. 141 , 1849 Ky. LEXIS 43 ( Ky. 1849 ); but see Brittain v. Duling, 54 Ky. 138 , 1854 Ky. LEXIS 58 ( Ky. 1854 ).

One may recover money loaned to another to pay previous gaming losses, if not privy to the games. White v. Wilson's Adm'r, 37 S.W. 677 ( Ky. 1896 ).

A winner or participant cannot recover loans made to pay previous losses. White v. Wilson's Adm'rs, 100 Ky. 367 , 38 S.W. 495, 18 Ky. L. Rptr. 892 , 1897 Ky. LEXIS 5 ( Ky. 1897 ).

11. Notes Based on Gambling Consideration.

The maker of a note could be estopped from pleading that it arose out of a gaming transaction by his inducements to the assignee. (decided under prior law) Wooldridge v. Cates, 25 Ky. 221 , 1829 Ky. LEXIS 75 ( Ky. 1829 ).

The maker of a note could be estopped from pleading that it arose out of a gaming transaction by renewing same directly to an assignee. (decided under prior law) Wooldridge v. Cates, 25 Ky. 221 , 1829 Ky. LEXIS 75 ( Ky. 1829 ).

A loser who assigned a note in payment thereof was nevertheless, as between the the parties, entitled to payment from the obligor or a new note. The obligors were entitled to credit, as against assignees, for any payment or settlement prior to notice of the assignment. (decided under prior law) Standeford's Adm'r v. Shultz & Co., 44 Ky. 581 , 1845 Ky. LEXIS 58 ( Ky. 1845 ).

A change in the transaction by which a note was given in lieu of the thing lost, did not affect the result. (decided under prior law) Brown v. Watson, 45 Ky. 588 , 1846 Ky. LEXIS 69 ( Ky. 1846 ); Bevil v. Hix, 512 Ky. 140 (1851); but see Bell v. Parker, 33 Ky. 51 , 1835 Ky. LEXIS 18 ( Ky. 1835 ).

Plaintiff executed a note to the winner for defendant’s gaming losses and took defendant’s note to secure repayment. Plaintiff, without paying his note, sued on defendant’s note, and was denied recovery on the ground that defendant’s note was not upon a lawful consideration. (decided under prior law) Brittain v. Duling, 54 Ky. 138 , 1854 Ky. LEXIS 58 ( Ky. 1854 ); Greathouse v. Throckmorton, 30 Ky. 16 , 1831 Ky. LEXIS 299 ( Ky. 1831 ).

An executor assigned an asset of the estate, part of the consideration for the assignment being a gaming debt of his own. The assignment was void and passed no title, and a renewal of the note did not change the situation. (decided under prior law) Reed v. Reeves's Adm'r, 76 Ky. 447 , 1877 Ky. LEXIS 86 ( Ky. 1877 ).

The maker of a bill or note based upon a gambling consideration could plead its illegality, even against an innocent holder. (decided under prior law) Cochran v. German Ins. Bank, 9 Ky. L. Rptr. 196 (1887). See Farmers' & D. Bank v. Unser, 13 Ky. L. Rptr. 965 .

The indorsers of a bill or note based upon a gambling consideration were liable and could not plead its illegality. (decided under prior law) Farmers' & D. Bank v. Unser, 13 Ky. L. Rptr. 965 .

A bona fide holder of a note alleged by the maker to be for a gaming consideration may plead a denial on information and belief, and also plead its understanding of the transaction. Campbell County Bank v. Schmitt, 142 Ky. 601 , 135 S.W. 274, 1911 Ky. LEXIS 285 ( Ky. 1911 ).

The assignee of a note based on a gambling consideration who knows the consideration cannot recover, although the makers, prior to his purchase, assure him that it is valid and will be paid. Holzbog v. Bakrow, 156 Ky. 161 , 160 S.W. 792, 1913 Ky. LEXIS 387 ( Ky. 1913 ).

The maker of a note may be estopped from pleading that it arose out of a gaming transaction by his inducements to the assignee. Holzbog v. Bakrow, 156 Ky. 161 , 160 S.W. 792, 1913 Ky. LEXIS 387 ( Ky. 1913 ); Levy v. Doerhoefer's Ex'r, 188 Ky. 413 , 222 S.W. 515, 1920 Ky. LEXIS 295 ( Ky. 1920 ).

The maker of a note may be estopped from pleading that it arose out of a gaming transaction by renewing same directly to an assignee. Holzbog v. Bakrow, 156 Ky. 161 , 160 S.W. 792, 1913 Ky. LEXIS 387 ( Ky. 1913 ).

The maker of a bill or note based upon a gambling consideration may plead its illegality, even against an innocent holder. Levy v. Doerhoefer's Ex'r, 188 Ky. 413 , 222 S.W. 515, 1920 Ky. LEXIS 295 ( Ky. 1920 ); Geo. Alexander & Co. v. Hazelrigg, 123 Ky. 677 , 97 S.W. 353, 29 Ky. L. Rptr. 1212 , 1906 Ky. LEXIS 203 ( Ky. 1906 ).

The indorsers of a bill or note based upon a gambling consideration are liable and may not plead its illegality. Thompson v. First State Bank, 216 Ky. 703 , 288 S.W. 702, 1926 Ky. LEXIS 1005 ( Ky. 1926 ).

12. Check for Gambling Loss.

A bank in which the winner deposits the loser’s check and which then honors winner’s check to an innocent third party is, as between it and the third party, the one to bear the loss. Thompson v. First State Bank, 216 Ky. 703 , 288 S.W. 702, 1926 Ky. LEXIS 1005 ( Ky. 1926 ).

Where maker of check for gambling loss stopped payment before it was cashed by payee and payee indorsed it to automobile firm for car, check was void and automobile firm could not deduct amount of check from purchase price of automobile purchased from maker of check. Dobbs v. Holder, 242 S.W.2d 605, 1951 Ky. LEXIS 1047 ( Ky. 1951 ).

13. Accounting in an Illegal Business.

Equity will not entertain a bill for an accounting of the profits between partners in an illegal business. Central Trust & Safe Deposit Co. v. Respass, 112 Ky. 606 , 66 S.W. 421, 23 Ky. L. Rptr. 1905 , 1902 Ky. LEXIS 201 ( Ky. 1902 ).

14. Recovery of Winnings.

A winner could not recover his winnings. (decided under prior law) Chiles v. Coleman, 9 Ky. 296 , 1820 Ky. LEXIS 53 ( Ky. 1820 ).

A winner cannot recover his winnings. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ). See Phillips v. Green, 194 Ky. 254 , 238 S.W. 742, 1922 Ky. LEXIS 138 ( Ky. 1922 ).

15. Resale of Thing Bet.

A resale between the parties of the thing bet was valid in the absence of bad faith. (decided under prior law) Bell v. Parker, 33 Ky. 51 , 1835 Ky. LEXIS 18 ( Ky. 1835 ).

A resale between the parties of the thing bet was invalid on general principles. (decided under prior law) Brown v. Watson, 45 Ky. 588 , 1846 Ky. LEXIS 69 ( Ky. 1846 ).

16. Recovery of Money Lost.

At common law money lost at gambling could not be recovered. (decided under prior law) Craig v. Curd, 309 Ky. 549 , 218 S.W.2d 395, 1949 Ky. LEXIS 763 ( Ky. 1949 ).

17. Creditors of Winner.

An obligation given by the loser to a creditor of the winner who had no knowledge of the gaming transaction was valid. (decided under prior law) Chiles v. Coleman, 9 Ky. 296 , 1820 Ky. LEXIS 53 ( Ky. 1820 ).

An obligation given by the loser to a creditor of the winner who had knowledge of or should have had knowledge of the gaming transaction was void. (decided under prior law) Lyle v. Lindsey, 44 Ky. 123 , 1844 Ky. LEXIS 87 ( Ky. 1844 ).

18. Bankruptcy.

Fact that a bankrupt is engaged in gambling as his chief occupation does not operate as a bar to his discharge in bankruptcy. In re Gentile, 107 F. Supp. 476, 1952 U.S. Dist. LEXIS 3830 (D. Ky. 1952 ).

19. Burden of Proof.

Every presumption was in favor of the legality of the transaction. (decided under prior law) Bibb v. Miller, 11 Ky. 206 (1875); Martin v. Richardson, 94 Ky. 183 , 21 S.W. 1039, 14 Ky. L. Rptr. 847 , 1893 Ky. LEXIS 31 ( Ky. 1893 ).

The burden of proof is on the one attacking the validity of a transaction. W. R. Craig & Co. v. Johnson, 225 Ky. 440 , 9 S.W.2d 110, 1928 Ky. LEXIS 796 ( Ky. 1928 ).

The fact that contracts for futures were handled through a clearing house does not place the burden on the broker to prove the legality of the contract. W. R. Craig & Co. v. Johnson, 225 Ky. 440 , 9 S.W.2d 110, 1928 Ky. LEXIS 796 ( Ky. 1928 ).

Cited:

Hope v. Burns, 6 F.R.D. 556, 1947 U.S. Dist. LEXIS 1604 (D. Ky. 1947 ); Elizabethtown Lincoln Mercury, Inc. v. Jones, 313 Ky. 321 , 231 S.W.2d 42, 1950 Ky. LEXIS 874 (1950); Tyler v. Goodman, 240 S.W.2d 582, 1951 Ky. LEXIS 980 ( Ky. 1951 ); In re Gentile, 123 F. Supp. 723, 1954 U.S. Dist. LEXIS 3072 (D. Ky. 1954 ); In re Edge, 282 S.W.2d 830, 1955 Ky. LEXIS 265 ( Ky. 1955 ); Webb v. Martin, 317 S.W.2d 899, 1958 Ky. LEXIS 118 ( Ky. 1958 ).

Opinions of Attorney General.

Contracts based upon sales transactions embracing the three elements of a lottery are illegal as violations of KRS 436.360 and are void as contrary to public policy and under this section which declares gaming contracts to be void. OAG 68-353 .

Research References and Practice Aids

Cross-References.

Business under assumed name, when authorized, KRS 365.015.

Contract for work or material, city of first class, void if city officer or employe has interest, KRS 61.250 .

Excessive interest, effect of on contract, KRS 360.020.

Labor organizations, certain agreements between carriers or shippers, KRS 336.190 , 336.200 .

Lotteries and gift enterprises prohibited, Ky. Const., § 226.

Permitting gambling, what constitutes, misdemeanor, KRS 528.070 .

Unemployment compensation, protection of rights, KRS 341.470 .

Unfair trade practices, certain contracts illegal, KRS 365.060.

Workers’ compensation:

Agreement of worker to pay insurance invalid, KRS 342.420 .

Kentucky Law Journal.

Charles, Illegality as a Real Defense Against a Holder in Due Course, 38 Ky. L.J. 492 (1950).

Soukup, Rolling the Dice on Precedent and Wagering on Legislation: The Law of Gambling Debt Enforceability in Kentucky after Kentucky Off-Track Betting, Inc. v. McBurney and KRS § 372.005 ., 95 Ky. L.J. 529 (2006/2007).

Note: Betting Against the House (and Senate): The Case for Legal, State-Sponsored Sports Wagering in a Post-PASPA World, 99 Ky. L.J. 163 (2010/2011).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer That Note Was Given for Gambling, Form 191.18.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint of Creditor to Recover Money Lost by His Debtor at Gaming, Form 351.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Gaming Law, § 351.00.

372.020. Recovery of gambling losses from winner or his transferee.

If any person loses to another at one (1) time, or within twenty-four (24) hours, five dollars ($5) or more, or anything of that value, and pays, transfers or delivers it, the loser or any of his creditors may recover it, or its value, from the winner, or any transferee of the winner, having notice of the consideration, by action brought within five (5) years after the payment, transfer or delivery. Recovery may be had against the winner, although the payment, transfer or delivery was made to the endorsee, assignee, or transferee of the winner. If the conveyance or transfer was of real estate, or the right thereto, in violation of KRS 372.010 , the heirs of the loser may recover it back by action brought within two (2) years after his death, unless it has passed to a purchaser in good faith for valuable consideration without notice.

History. 1956.

NOTES TO DECISIONS

1. Construction.

A loser cannot recover double his losses by suing the winner under this section and also for inviting the loser to his gaming house under KRS 436.260 (repealed). Wemhoff v. Rutherford, 98 Ky. 91 , 32 S.W. 288, 17 Ky. L. Rptr. 659 , 1895 Ky. LEXIS 21 ( Ky. 1895 ).

Evidence that would authorize a recovery under this section, since they provide two (2) separate causes of action that cannot be pleaded in the same petition. Wemhoff v. Rutherford, 98 Ky. 91 , 32 S.W. 288, 17 Ky. L. Rptr. 659 , 1895 Ky. LEXIS 21 ( Ky. 1895 ); Stapp v. Mason, 114 Ky. 900 , 72 S.W. 11, 24 Ky. L. Rptr. 1680 , 1903 Ky. LEXIS 50 ( Ky. 1903 ); Peirano v. Shapiro, 188 Ky. 652 , 223 S.W. 1098, 1920 Ky. LEXIS 333 ( Ky. 1920 ).

This section provides in substance that money or anything else of value lost in gambling may be recovered of the winner by the loser by action within five (5) years. Webb v. Martin, 317 S.W.2d 899, 1958 Ky. LEXIS 118 ( Ky. 1958 ).

2. Applicability.

This section applies to gambling in futures. Boyd Com. Co. v. Coates, 69 S.W. 1090, 24 Ky. L. Rptr. 730 , 1902 Ky. LEXIS 386 (Ky. Ct. App. 1902); Paducah Com. Co. v. Boswell, 83 S.W. 144, 26 Ky. L. Rptr. 1062 (1904); Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ); Timmons v. Timmons, 145 Ky. 259 , 140 S.W. 164, 1911 Ky. LEXIS 814 ( Ky. 1911 ); Lilienthal v. Carpenter, Baggott & Co., 148 Ky. 50 , 146 S.W. 2, 1912 Ky. LEXIS 383 ( Ky. 1912 ); John L. Dunlap & Co. v. Perry, 191 Ky. 290 , 230 S.W. 291, 1921 Ky. LEXIS 313 ( Ky. 1921 ).

A suit to recover from the winner money bet and lost on the outcome of an election is properly brought under KRS 436.330 (repealed), not under provisions of this section. Craig v. Curd, 309 Ky. 549 , 218 S.W.2d 395, 1949 Ky. LEXIS 763 ( Ky. 1949 ).

3. Agreement for Restoration.

An agreement for restoration without filing of suit was valid if not entered into for the purpose of evading the law. (decided under prior law) Barnes v. Turner, 61 Ky. 114 , 1862 Ky. LEXIS 34 ( Ky. 1862 ).

An agreement for restoration without filing of suit is valid if not entered into for the purpose of evading the law even if payable from the proceeds of an unlawful business. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

4. Time of Bet.

The time of the bet or wager or the length of time it pended undetermined was immaterial. (decided under prior law) Lyons v. Hodgen, 90 Ky. 280 , 13 S.W. 1076, 12 Ky. L. Rptr. 211 , 1890 Ky. LEXIS 81 ( Ky. 1890 ).

5. Place of Loss.

The place of loss is immaterial. Wemhoff v. Rutherford, 98 Ky. 91 , 32 S.W. 288, 17 Ky. L. Rptr. 659 , 1895 Ky. LEXIS 21 ( Ky. 1895 ).

6. Who Could Recover.

The loser and his creditors had an exclusive right of recovery for six (6) months, after which any other person could sue, the one first suing having the preference. (decided under prior law) Brittain v. Duling, 54 Ky. 538 (1854); Conner v. Ragland, 54 Ky. 634 , 1855 Ky. LEXIS 18 ( Ky. 1855 ); Barnes v. Turner, 61 Ky. 114 , 1862 Ky. LEXIS 34 ( Ky. 1862 ).

A wife could satisfy a judgment for alimony against her absconding husband by resort against one who had won from him at betting. (decided under prior law) Cain v. McHarry, 65 Ky. 263 , 1867 Ky. LEXIS 71 ( Ky. 1867 ).

A creditor was entitled to the amount lost at the particular sitting, and amounts won by said debtor from defendant at other sittings could not be set off against said losses. (decided under prior law) Caldwell v. Caldwell, 65 Ky. 446 , 1867 Ky. LEXIS 97 ( Ky. 1867 ).

It was not within the spirit of the law to permit a recovery from a bettor by the operator. (decided under prior law) Brown v. Thompson, 77 Ky. 538 , 1879 Ky. LEXIS 18 ( Ky. 1879 ).

It was not within the spirit of the law to permit a recovery from a bettor by the operator either by original action or counterclaim but any such claim was available as a setoff. (decided under prior law) Elias v. Gill, 92 Ky. 569 , 18 S.W. 454, 13 Ky. L. Rptr. 798 , 1892 Ky. LEXIS 20 ( Ky. 1892 ).

7. What May Be Recovered.

Land lost in gaming may be recovered unless held by a purchaser in good faith for valuable consideration without notice. Holzbog v. Bakrow, 156 Ky. 161 , 160 S.W. 792, 1913 Ky. LEXIS 387 ( Ky. 1913 ).

Although this section differs from KRS 372.040 mainly in that under this section the person losing the money or his creditor can sue the winner for only the money lost, while under KRS 372.040 , if the loser or creditor does not sue within six (6) months, any other person can sue for treble the value of the money lost, the guiding principles of law under both sections should be the same and the proof must show that defendant received, either directly or indirectly, some part of the money lost and that defendant was the “winner” of the money lost but amount paid bookmaker to be turned over to federal government under federal wagering law was not “lost,” since this amount was won in the gambling transaction. Gumer v. Sailor, 286 S.W.2d 515, 1956 Ky. LEXIS 413 (Ky. Ct. App. 1956).

8. Instrument Based on Gambling Consideration.

One suing for cancellation of a note given for a gaming consideration may also recover the value of collateral security deposited by him. Timmons v. Timmons, 145 Ky. 259 , 140 S.W. 164, 1911 Ky. LEXIS 814 ( Ky. 1911 ).

A check or other evidence of indebtedness based upon a gambling consideration is absolutely void, and the obligor is not bound to even an innocent holder of the instrument. Dobbs v. Holder, 242 S.W.2d 605, 1951 Ky. LEXIS 1047 ( Ky. 1951 ).

When a statute expressly declares the instrument void, it gathers no vitality by its circulation with respect to the party executing it. Dobbs v. Holder, 242 S.W.2d 605, 1951 Ky. LEXIS 1047 ( Ky. 1951 ).

9. Recovery by Creditor of Operator.

It is not within the spirit of this section to permit a recovery from a bettor by a creditor of the operator. Stapp v. Mason, 114 Ky. 900 , 72 S.W. 11, 24 Ky. L. Rptr. 1680 , 1903 Ky. LEXIS 50 ( Ky. 1903 ).

10. Persons Liable.

Recovery could be had from the winner or from one receiving money for his use. (decided under prior law) English v. Young, 49 Ky. 141 , 1849 Ky. LEXIS 43 ( Ky. 1849 ).

Any person who shared in the profits of the game was liable and the extent of his sharing was immaterial. (decided under prior law) Triplett v. Seelbach, 91 Ky. 30 , 14 S.W. 948, 12 Ky. L. Rptr. 661 , 1890 Ky. LEXIS 146 ( Ky. 1890 ).

The operator of a place where gaming was conducted who received a take-out from each hand was a winner. (decided under prior law) Triplett v. Seelbach, 91 Ky. 30 , 14 S.W. 948, 12 Ky. L. Rptr. 661 , 1890 Ky. LEXIS 146 ( Ky. 1890 ).

Any person sharing in the profits of the game is liable hereunder. White v. Wilson's Adm'rs, 100 Ky. 367 , 38 S.W. 495, 18 Ky. L. Rptr. 892 , 1897 Ky. LEXIS 5 ( Ky. 1897 ).

The “winner” need not be a participant in the game. White v. Wilson's Adm'rs, 100 Ky. 367 , 38 S.W. 495, 18 Ky. L. Rptr. 892 , 1897 Ky. LEXIS 5 ( Ky. 1897 ).

Any person sharing in the profits of the game is liable hereunder even if it be without his knowledge and the extent of the sharing is immaterial. Cartwright v. McElwain, 132 Ky. 83 , 116 S.W. 297, 1909 Ky. LEXIS 95 ( Ky. 1909 ).

Losses suffered in a gaming room at a saloon may be recovered from the licensee of the saloon unless the licensee had not authorized the operation of the gaming room and had not participated in the profits. Cartwright v. McElwain, 132 Ky. 83 , 116 S.W. 297, 1909 Ky. LEXIS 95 ( Ky. 1909 ).

A loser may recover his deposit from the winner under this section or from the stakeholder under KRS 372.050 . Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

A broker for a bucket shop, paid by commission, is a wrongdoer liable for the amount of loss. Timmons v. Timmons, 145 Ky. 259 , 140 S.W. 164, 1911 Ky. LEXIS 814 ( Ky. 1911 ); Lilienthal v. Carpenter, Baggott & Co., 148 Ky. 50 , 146 S.W. 2, 1912 Ky. LEXIS 383 ( Ky. 1912 ); John L. Dunlap & Co. v. Perry, 191 Ky. 290 , 230 S.W. 291, 1921 Ky. LEXIS 313 ( Ky. 1921 ).

Recovery may be had from the winner or from one receiving money for his use. Nicholson v. Alvey, 150 Ky. 343 , 150 S.W. 364, 1912 Ky. LEXIS 891 ( Ky. 1912 ).

Recovery may be had from the winner or from one receiving money for his use but the transferee is liable only if he had notice. Holzbog v. Bakrow, 156 Ky. 161 , 160 S.W. 792, 1913 Ky. LEXIS 387 ( Ky. 1913 ).

Where handbook was operated in rear of defendant’s establishment and with consent and acquiescence of defendant, it was not shown that defendant was the “winner” of money lost by plaintiff or was the “transferee of the winner,” within meaning of this section, and court was not authorized to enter judgment against him. Tyler v. Goodman, 240 S.W.2d 582, 1951 Ky. LEXIS 980 ( Ky. 1951 ).

11. Judgment Based on Gaming Transaction.

A judgment cannot be attacked collaterally because the action was based on a gaming transaction, and such fact will not bar an action on the appeal bond. Jacob v. Hill, 111 Ky. 926 , 65 S.W. 21, 23 Ky. L. Rptr. 1529 , 1901 Ky. LEXIS 279 (Ky. Ct. App. 1901). See Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

12. Pleadings.

The statute of limitations applicable to suits was five (5) years, and, if the winner died, the six (6) months’ period during which his administrator could not be sued was to be added. (decided under prior law) McKinney v. Pope's Adm'r, 42 Ky. 93 , 1842 Ky. LEXIS 110 ( Ky. 1842 ).

A complaint seeking to recover a gambling loss which alleged plaintiff lost $8,060 to defendant at gaming, wagering or betting and that defendant refused to pay this sum or any part of it on demand of the plaintiff was sufficient. Hope v. Burns, 6 F.R.D. 556, 1947 U.S. Dist. LEXIS 1604 (D. Ky. 1947 ).

The petition must allege that the bet was collected. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

The petition must allege that the transaction took place in Kentucky. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

Cited:

Griffith’s Adm’x v. Miller, 285 Ky. 675 , 149 S.W.2d 11, 1941 Ky. LEXIS 454 ( Ky. 1941 ).

Research References and Practice Aids

Cross-References.

Promoting gambling in second degree, KRS 528.030 .

Kentucky Law Journal.

Redwine, Restitution of Benefit Conferred on an Illegal Bargain in Kentucky, 33 Ky. L.J. 206 (1945).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint of Creditor to Recover Money Lost by His Debtor at Gaming, Form 351.01.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Recover Gambling Losses Against Operator of a Card Room, Form 351.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Gaming Law, § 351.00.

372.030. Equitable relief against winner — No penalty or forfeiture.

Any person entitled to recovery under KRS 372.020 may have discovery and relief in equity; but when such relief is obtained, the winner shall be discharged from all penalty and forfeiture for having won the money or other thing which, or the value of which, is so recovered back.

History. 1957.

NOTES TO DECISIONS

1. Discharged.

The word “discharge” indicates a civil liability or obligation, as no person can be “discharged” from a grand jury investigation or personal affidavit charging a crime; thus defendant, in an action to recover gambling loss, could assert his constitutional immunity against being compelled to give evidence against himself by answering plaintiff’s interrogatories. Hope v. Burns, 6 F.R.D. 556, 1947 U.S. Dist. LEXIS 1604 (D. Ky. 1947 ).

Cited:

Griffith’s Adm’x v. Miller, 285 Ky. 675 , 149 S.W.2d 11, 1941 Ky. LEXIS 454 ( Ky. 1941 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint of Creditor to Recover Money Lost by His Debtor at Gaming, Form 351.01.

372.040. Suit by third person where loser or creditor does not sue.

If the loser or his creditor does not, within six (6) months after its payment or delivery to the winner, sue for the money or thing lost, and prosecute the suit to recovery with due diligence, any other person may sue the winner, and recover treble the value of the money or thing lost, if suit is brought within five (5) years from the delivery or payment.

History. 1958.

NOTES TO DECISIONS

1. Construction.

This section is both remedial and penal and therefore enforceable. Hartlieb v. Carr, 94 F. Supp. 279, 1950 U.S. Dist. LEXIS 2112 (D. Ky. 1950 ).

2. Applicability.

A suit to recover from the winner money bet and lost on the outcome of an election is properly brought under KRS 436.330 (repealed), not under the provisions of this section. Craig v. Curd, 309 Ky. 549 , 218 S.W.2d 395, 1949 Ky. LEXIS 763 ( Ky. 1949 ).

3. Lost.

Money given to bookmaker by winner to be paid to federal government under the federal wagering act is not “lost” and cannot be recovered under this section. Gumer v. Sailor, 286 S.W.2d 515, 1956 Ky. LEXIS 413 (Ky. Ct. App. 1956).

4. Winners.

Where the allegations in the complaint showed that the owners of the premises on which gambling operations took place were not the “winners” of the money, no cause of action was stated against them under this section. Gillespie v. Schomaker, 191 F. Supp. 8, 1961 U.S. Dist. LEXIS 3164 (E.D. Ky. 1961 ).

The legal fiction of separate corporate personality was correctly swept aside by the lower court and the individuals who composed it or incorporators were correctly held liable as “winners” under this section. Veterans Service Club v. Sweeney, 252 S.W.2d 25, 1952 Ky. LEXIS 970 ( Ky. 1952 ).

5. Payment of Loss.

There is no right of action until the bet is paid. Jacob v. Clark's Committee, 66 S.W. 37 ( Ky. 1901 ), rev'd, Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

Where the loss is paid voluntarily or after judgment is immaterial. Jacob v. Clark's Committee, 66 S.W. 37 ( Ky. 1901 ), rev'd, Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

6. Liability of Winners.

In order to constitute the offense for which the penalty may be exacted under this section, it is necessary that the winner must have collected the money or received the property from the loser. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

The winner is not liable when he merely holds the unpaid note of the loser. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

The winner is not liable when the money received by him was paid by a surety on the loser’s supersedeas bond. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

7. Who May Sue.

The loser and his creditors had an exclusive right of recovery for six (6) months, after which any other person could sue, the one first suing having the preference. (decided under prior law) Brittain v. Duling, 54 Ky. 138 , 1854 Ky. LEXIS 58 ( Ky. 1854 ); Conner v. Ragland, 54 Ky. 634 , 1855 Ky. LEXIS 18 ( Ky. 1855 ); Barnes v. Turner, 61 Ky. 114 , 1862 Ky. LEXIS 34 ( Ky. 1862 ).

Where plaintiff sued defendant for gambling losses sustained by plaintiff’s husband to defendant, this section was broad enough to entitle wife of the loser at gaming to its benefit without regard to her place of residence or her citizenship. Scott v. Curd, 101 F. Supp. 396, 1951 U.S. Dist. LEXIS 2034 (D. Ky. 1951 ).

Term “person” as used in Loss Recovery Act does not authorize suit on behalf of the Commonwealth, and neither the purpose nor history of the statute support the Commonwealth’s inclusion as a “person” authorized to bring suit and recover treble damages; the phrase “any other person” is limited to natural persons, and the circuit court erred in denying defendants’ motions to dismiss the action. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

While Ky. Rev. Stat. Ann. § 446.010(33) permits the Commonwealth, as a body-politic, to be included as a “person” when the word is used in a statute, it does not mandate it; allowing the Commonwealth to recover under Ky. Rev. Stat. Ann. § 372.040 contravenes one of the stated purposes by allowing the Commonwealth to take what could, absent the Commonwealth’s suit, be recovered by a suit of the gambler’s own representative. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

8. Agreement for Restoration.

An agreement for restoration to the loser without filing of suit was valid if not entered into for the purpose of evading the law. (decided under prior law) Barnes v. Turner, 61 Ky. 114 , 1862 Ky. LEXIS 34 ( Ky. 1862 ).

9. Jurisdiction.

This section is primarily remedial and not penal legislation; hence, a federal court had jurisdiction to entertain a suit by an Ohio resident against a Kentucky resident who had won money by gambling. Salonen v. Farley, 82 F. Supp. 25, 1949 U.S. Dist. LEXIS 2984 (D. Ky. 1949 ).

10. Immunity from Self-incrimination.

In a suit under this section, the parties may not be compelled to give self-incriminating testimony. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ); Akers v. Fuller, 312 Ky. 502 , 228 S.W.2d 29, 1950 Ky. LEXIS 683 ( Ky. 1950 ).

11. Pleading.

The judgment had to be for treble the actual value of the loss, not the face value. (decided under prior law) Perrit v. Crouch, 68 Ky. 199 , 1868 Ky. LEXIS 245 ( Ky. 1868 ).

The petition must allege payment of the bet as there is no right of action until the bet is paid. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

The petition must allege that the transaction took place in Kentucky. Jacob v. Clark, 115 Ky. 255 , 72 S.W. 1095, 24 Ky. L. Rptr. 2120 , 1903 Ky. LEXIS 92 ( Ky. 1903 ).

Loss Recovery Act (LRA) was intended to promote natural persons who had knowledge of specific instances of illegal gambling to file suit to assist the Commonwealth in enforcing its anti-gambling regulations; a third-party LRA complaint must set forth basic facts such as the identity of the parties, date of the conduct, and nature of the gambling losses at issue. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

Loss Recovery Act (LRA) contemplates that the third-party bringing suit to recover for another’s losses will have some knowledge of the illegal gambling he seeks to redress, and a third-party cannot state a valid claim under the LRA without identifying the basic facts necessary to give rise to a statutory cause of action; a third party must do more than assert that the defendant fostered illegal gambling in the state that caused unidentified Kentuckians unspecified amounts of damages, as the Commonwealth did in this case. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

Before there can be a cause of action in a third party, there must be a specific, definite person who failed to bring suit, and the specific “loser” is a necessary part of the statute; the Commonwealth cannot allege that those six months have passed, or that it has timely brought its claim, without alleging a specific “loser” and the date on which that “loser” lost. Without that information the Commonwealth, and indeed, no plaintiff, can demonstrate a valid cause of action. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

Cited:

Tucker v. Cutler, 185 F.2d 853, 1950 U.S. App. LEXIS 3370 (6th Cir. 1950), cert. denied, 340 U.S. 933, 71 S. Ct. 497, 95 L. Ed. 673, 1951 U.S. LEXIS 2200 (1951); Tabet v. Morris, 285 S.W.2d 143, 1955 Ky. LEXIS 60 ( Ky. 1955 ).

Research References and Practice Aids

Kentucky Law Journal.

Ham, A Survey of Kentucky Corporation Cases Since 1946, 44 Ky. L.J. 5 (1955).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Recover Treble Amount Lost, Form 351.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Gaming Law, § 351.00.

372.050. Return of money or property held by stakeholder.

The stakeholder of any money or other thing staked on any bet or wager shall, when notified to do so, return the stake to the person who deposited it. If he fails to do so, the person aggrieved may recover from him the amount or value of the stake.

History. 1959.

NOTES TO DECISIONS

1. Applicability.

This section applies to gambling in futures. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

2. Stakeholder.

One may be both a bettor and the stakeholder. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

The operator of a french pool or pari-mutuel holds the amount payable to the winners as a stakeholder and this section is applicable. Louisville v. Churchill Downs, 267 Ky. 339 , 102 S.W.2d 10, 1936 Ky. LEXIS 765 ( Ky. 1936 ).

3. Notice and Demand.

Any words that clearly inform the stakeholder that the wager is not to be carried out and that he is not to pay over the deposit to the supposed winner are a sufficient notice to return the deposit. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

A refusal by the stakeholder to deliver the deposit to either party makes further demand necessary. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

One of the losers is competent to testify that he gave notice, although previously an undisclosed principal. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

The demand for return of the money or property revokes the bet. Gardner v. Ballard, 114 Ky. 93 , 70 S.W. 196, 24 Ky. L. Rptr. 880 , 1902 Ky. LEXIS 138 ( Ky. 1902 ).

4. Evidence of Refusal to Return.

That the stakeholder required indemnity from the winner before paying him is competent evidence on the issue of the stakeholder’s refusal to return the loser’s deposit. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

5. Liability of Stakeholder.

The stakeholder was individually liable to loser for deposit after he refused to return it. (decided under prior law) Conner v. Ragland, 54 Ky. 634 , 1855 Ky. LEXIS 18 ( Ky. 1855 ); Hutchings, & Co. v. Stilwell, 57 Ky. 776 , 1857 Ky. LEXIS 93 ( Ky. 1857 ).

After the stakeholder refused to return the deposit, he held it as an individual, not as a stakeholder. Gardner v. Ballard, 114 Ky. 93 , 70 S.W. 196, 24 Ky. L. Rptr. 880 , 1902 Ky. LEXIS 138 ( Ky. 1902 ).

Receipt by the winner of the stake, after the stakeholder has refused to return to the loser his deposit, is not the receipt of money won upon a bet. Gardner v. Ballard, 114 Ky. 93 , 70 S.W. 196, 24 Ky. L. Rptr. 880 , 1902 Ky. LEXIS 138 ( Ky. 1902 ).

The fact that the contingency determining the outcome of the bet has occurred is immaterial. Gardner v. Ballard, 114 Ky. 93 , 70 S.W. 196, 24 Ky. L. Rptr. 880 , 1902 Ky. LEXIS 138 ( Ky. 1902 ).

A contract by a stakeholder to repay the stake is enforceable, even if payable from the proceeds of an unlawful business. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

A loser may recover his deposit from the winner, or, after demand and before payment, from the stakeholder. Williams Com. Co.'s Assignee v. W. A. Shirley & Bro., 136 Ky. 303 , 124 S.W. 327, 1910 Ky. LEXIS 484 ( Ky. 1910 ).

A candidate who has bought out his rival nominee and deposited money to secure performance of his part of the agreement cannot, after consummation of the illegal contract, recover his deposit from the stakeholder or one to whom the stake has been delivered, this being more than a mere betting agreement. However, he could recover prior to consummation. Martin v. Francis, 173 Ky. 529 , 191 S.W. 259, 1917 Ky. LEXIS 473 ( Ky. 1917 ) ( Ky. 1917 ).

6. Parties to Action.

Actions had to be brought in the name of the loser, and not by an agent. (decided under prior law) Donohue v. McDonald, 92 Ky. 123 , 17 S.W. 195, 13 Ky. L. Rptr. 413 , 1891 Ky. LEXIS 115 ( Ky. 1891 ).

Actions hereunder must be brought in the name of the loser, and not by an agent. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Stakeholder to Return Money to Person Making Deposit, Form 351.04.

372.060. Champertous contracts and conveyances void.

Any contract, agreement or conveyance made in consideration of services to be rendered in the prosecution or defense, or aiding in the prosecution or defense, in or out of court, of any suit, by any person not a party on record in the suit, whereby the thing sued for or in controversy or any part thereof, is to be taken, paid or received for such services or assistance, is void.

History. 209.

NOTES TO DECISIONS

1. In General.

The policy of the law did not extend to a contract which had no tendency to produce or continue the litigation. (decided under prior law) King v. Boles, 4 Ky. Op. 147, 1870 Ky. LEXIS 302 (Ky. Ct. App. Nov. 4, 1870).

Doubts should have been resolved in favor of the validity of the contract. (decided under prior law) Cumberland & O. R. Co. v. Harrison, 10 Ky. Op. 878, 1 Ky. L. Rptr. 411 , 1880 Ky. LEXIS 451 (Ky. Ct. App. Nov. 20, 1880).

Doubts should be resolved in favor of the validity of the contract. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

2. Applicability.

This section was inapplicable in action on notes which had been acquired by plaintiff when he purchased all of assets of a finance company which went into voluntary liquidation. Holmes v. Clark, 274 Ky. 349 , 118 S.W.2d 758, 1938 Ky. LEXIS 285 ( Ky. 1938 ).

Debtor’s assertion that a company could not recover on a claim filed in the bankruptcy proceedings because the assignment violated KRS 372.060 was without merit because the debtor did not provide any evidence that the assignment of an account was related to any lawsuit. In re Hill, 399 B.R. 472, 2008 Bankr. LEXIS 3193 (Bankr. W.D. Ky. 2008 ).

3. Maintenance.

Maintenance signified an unlawful taking in hand and upholding of quarrels or sides to the disturbance or hindrance of common right. (decided under prior law) Brown v. Beauchamp, 21 Ky. 413 , 1827 Ky. LEXIS 183 ( Ky. 1827 ).

There were two classes of maintenance: (1) ruralis and (2) curialis. Of the latter class there were three species: (1) common maintenance, (2) champerty, and (3) embracery. (decided under prior law) Brown v. Beauchamp, 21 Ky. 413 , 1827 Ky. LEXIS 183 ( Ky. 1827 ).

A contract between a stranger and an attorney whereby the former was to procure the employment of the latter, locate witnesses and do errands, and receive, if the suit was successful, an amount equal to one half of the attorney’s fee constituted maintenance. Lynn v. Moss, 139 Ky. 637 , 62 S.W. 712, 23 Ky. L. Rptr. 214 , 1901 Ky. LEXIS 2 ( Ky. 1901 ).

The common-law rule against maintenance is still in force in Kentucky. Lynn v. Moss, 139 Ky. 637 , 62 S.W. 712, 23 Ky. L. Rptr. 214 , 1901 Ky. LEXIS 2 ( Ky. 1901 ); Wilhoit's Adm'x v. Richardson, 193 Ky. 559 , 236 S.W. 1025, 1921 Ky. LEXIS 2 45 ( Ky. 1921 ).

Compensation is not essential to maintenance. Whisman v. Wells, 206 Ky. 59 , 266 S.W. 897, 1924 Ky. LEXIS 268 ( Ky. 1924 ).

Maintenance is not committed unless something is done which tends to obstruct the course of justice, or is against good policy in tending to promote unnecessary litigation, and is performed under a bad motive. The vice of a champertous or maintenous contract is the tendency or purpose to stir up and foment litigation, multiply contentions, or unsettle the peace and quiet of a community, or set one neighbor against another, or give one litigant advantage over another. Fordson Coal Co. v. Garrard, 277 Ky. 218 , 125 S.W.2d 977, 1939 Ky. LEXIS 611 ( Ky. 1939 ).

4. Definition of Champerty.

At common law champerty was a bargain by which a person having no interest in the subject matter of a suit undertook to carry on the suit at his own expense, or aid in so doing, in consideration of receiving, if successful, a part of the recovery, or some benefit therefrom. (decided under prior law) Rust v. Larue, 14 Ky. 411 , 1823 Ky. LEXIS 209 ( Ky. 1823 ); Brown v. Beauchamp, 21 Ky. 413 , 1827 Ky. LEXIS 183 ( Ky. 1827 ); Preston v. Breckinridge, 86 Ky. 619 , 6 S.W. 641, 10 Ky. L. Rptr. 2 , 1888 Ky. LEXIS 15 ( Ky. 1888 ).

At common law champerty is a bargain by which a person having no interest in the subject matter of a suit undertakes to carry on the suit at his own expense, or aid in so doing, in consideration of receiving, if successful, a part of the recovery, or some benefit therefrom. Waller's Adm'x v. Marks, 100 Ky. 541 , 38 S.W. 894, 19 Ky. L. Rptr. 121 , 1897 Ky. LEXIS 29 ( Ky. 1897 ); Wilhoit's Adm'x v. Richardson, 193 Ky. 559 , 236 S.W. 1025, 1921 Ky. LEXIS 245 ( Ky. 1921 ); Whisman v. Wells, 206 Ky. 59 , 266 S.W. 897, 1924 Ky. LEXIS 268 ( Ky. 1924 ).

Champerty is the unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute or some profit out of it; every champerty is maintenance but every maintenance is not champerty. Fordson Coal Co. v. Garrard, 277 Ky. 218 , 125 S.W.2d 977, 1939 Ky. LEXIS 611 ( Ky. 1939 ).

5. Champertous Agreements.

A contract to share a part of the recovery with an attorney, agent, or stranger to the suit was champertous. (decided under prior law) Rust v. Larue, 14 Ky. 411 , 1823 Ky. LEXIS 209 ( Ky. 1823 ); Brown v. Beauchamp, 21 Ky. 413 , 1827 Ky. LEXIS 183 ( Ky. 1827 ); Caldwell's Adm'r v. Shepherd's Heirs, 22 Ky. 389 , 1827 Ky. LEXIS 303 ( Ky. 1827 ); Davis v. Sharron, 54 Ky. 64 , 1854 Ky. LEXIS 49 ( Ky. 1854 ); Miles v. Collins, 58 Ky. 308 , 1858 Ky. LEXIS 54 ( Ky. 1858 ).

It was not necessary that suit be pending at the time the champertous contract was made. (decided under prior law) Rust v. Larue, 14 Ky. 411 , 1823 Ky. LEXIS 209 ( Ky. 1823 ); Roberts v. Yancey, 94 Ky. 243 , 21 S.W. 1047, 15 Ky. L. Rptr. 10 , 1893 Ky. LEXIS 32 ( Ky. 1893 ).

It was not necessary that the attorney support the suit, in whole or in part, at his own cost. (decided under prior law) Rust v. Larue, 14 Ky. 411 , 1823 Ky. LEXIS 209 ( Ky. 1823 ).

An attorney under a champertous contract had no lien on the judgment. (decided under prior law) Davis v. Sharron, 54 Ky. 64 , 1854 Ky. LEXIS 49 ( Ky. 1854 ).

A contract to share a part of the recovery with an attorney, agent, or stranger to the suit is champertous. Roberts v. Yancey, 14 Ky. L. Rptr. 42 , aff'd, Godfrey v. Commonwealth, 21 S.W. 1047, 15 Ky. L. Rptr. 3 (1893), aff'd, 94 Ky. 243 , 21 S.W. 1047, 15 Ky. L. Rptr. 10 , 1893 Ky. LEXIS 32 ( Ky. 1893 ); Raymond v. McCleery, 15 Ky. L. Rptr. 269 (1893); Wemhoff v. Rutherford, 98 Ky. 91 , 32 S.W. 288, 17 Ky. L. Rptr. 659 , 1895 Ky. LEXIS 21 ( Ky. 1895 ); Leonard v. Boyd, 71 S.W. 508, 24 Ky. L. Rptr. 1320 , 1903 Ky. LEXIS 304 ( Ky. 1903 ); Cumberland Tel. & Tel. Co. v. Maxberry, 134 Ky. 642 , 121 S.W. 447, 1909 Ky. LEXIS 410 ( Ky. 1909 ); Wilhoit's Adm'x v. Richardson, 193 Ky. 559 , 236 S.W. 1025, 1921 Ky. LEXIS 245 ( Ky. 1921 ).

A suit instituted for the benefit of plaintiff’s attorney may properly be dismissed. Norris v. Evans, 22 S.W. 328, 15 Ky. L. Rptr. 77 , 1893 Ky. LEXIS 164 ( Ky. 1893 ).

“A party on record in the suit” in a representative capacity cannot contract in his individual capacity to assist in the suit in consideration of part of the thing in controversy. Wilhoit's Adm'x v. Richardson, 193 Ky. 559 , 236 S.W. 1025, 1921 Ky. LEXIS 245 ( Ky. 1921 ).

A sale of an interest in the object in suit in consideration of assistance in prosecution of the suit is void. Whisman v. Wells, 206 Ky. 59 , 266 S.W. 897, 1924 Ky. LEXIS 268 ( Ky. 1924 ). See Rogers v. Samples, 207 Ky. 150 , 268 S.W. 799, 1925 Ky. LEXIS 37 ( Ky. 1925 ); Woods v. White, 253 Ky. 263 , 69 S.W.2d 349, 1934 Ky. LEXIS 641 ( Ky. 1934 ).

Deed and contract executed pursuant to agreement by father to convey property to daughter and her husband for sums advanced to him to prosecute a divorce action and suit for restoration of property are champertous and could be set aside. Charles v. Phillips, 252 S.W.2d 920, 1952 Ky. LEXIS 1048 ( Ky. 1952 ).

Contract of assignment between heir and company engaged in locating missing heirs, assigning portion of heir’s legacy to company in consideration for its services, and providing that company was to act as agent and to employ counsel but that expenses, including attorney fees, should be borne by company, violated this section and was unenforceable. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

Blood relationship of parties to champertous agreement did not take the agreement out of this section. Newman v. Kentucky-West Virginia Gas Co., 372 S.W.2d 410, 1963 Ky. LEXIS 134 ( Ky. 1963 ).

6. Nonchampertous Agreements.

A sale of an interest in a chose in action to another owner of an interest therein, after institution of suit thereon, in consideration of love and affection was not champertous. (decided under prior law) Blackerby v. Holton, 35 Ky. 520 ( Ky. 1837 ).

A contract to pay an attorney an amount equal to a specified part of the recovery was valid. (decided under prior law) Wilhite v. Roberts, 34 Ky. 172 , 1836 Ky. LEXIS 46 ( Ky. 1836 ); Evans v. Bell, 36 Ky. 479 , 4 Ky. L. Rptr. 1010 , 1838 Ky. LEXIS 91 ( Ky. 1838 ); Ramsey's Devisees v. Trent, 49 Ky. 336 , 1850 Ky. LEXIS 106 ( Ky. 1850 ).

The fact that “one fourth of the value of the land” was not to be determined until after expenses and costs were deducted from said one-fourth was not objectionable. The employers, not the attorneys, paid the expenses. Ramsey's Devisees v. Trent, 49 Ky. 336 , 1850 Ky. LEXIS 106 ( Ky. 1850 ).

The fact that the attorney fee was not to be paid until after the land was sold was not objectionable, as the attorney had no specific right to the proceeds. (decided under prior law) Ramsey's Devisees v. Trent, 49 Ky. 336 , 1850 Ky. LEXIS 106 ( Ky. 1850 ).

A contract to pay an attorney an amount equal to a specified part of the recovery was valid and the fact that the client reserved the right to pay a certain part of the recovery did not invalidate the contract. (decided under prior law) Isom v. Bell & Wilson, 7 Ky. L. Rptr. 589 , 1886 Ky. LEXIS 147 (1886).

An agreement by the assignor of an account to sue the debtor for assignee’s benefit if the account was not paid, the assignee to pay the attorney’s fee, was not champertous. (decided under prior law) Bell v. Gregory & Co., 10 Ky. L. Rptr. 636 , 1888 Ky. LEXIS 145 (Kan. Ct. App. Dec. 12, 1888).

An agreement between the holder of a title bond and his vendee of an interest therein whereby the former is in this own name to sue the holder of legal title and their common vendor for the purpose of securing a deed and canceling the outstanding deed does not violate this section. Wells v. Fitzgerald, 297 F. 586, 1924 U.S. App. LEXIS 2859 (6th Cir. Ky. 1924 ).

When the one to prosecute already holds an interest and makes arrangements with the others interested in the title that his fractional interest shall be increased if he succeeds, this section is not violated. W. C. Belcher Land Mortg. Co. v. Hazard Coal Corp., 15 F.2d 481, 1926 U.S. App. LEXIS 2916 (6th Cir. Ky. 1926 ).

A litigant may employ an agent to attend to his litigation, and become bound to pay and reimburse him, without violating this section. Raymond v. McCleery, 15 Ky. L. Rptr. 269 (1893).

An agreement by a vendor to assist his vendee to prosecute an action against trespassers for the value of timber removed, one half of the recovery to be applied in payment of the purchase notes, is not champertous. Hall v. Deaton, 68 S.W. 672, 24 Ky. L. Rptr. 314 , 1902 Ky. LEXIS 315 (Ky. Ct. App. 1902).

An agreement in an insurance contract whereby the insurer is bound to defend suits at its cost and to pay costs of litigation is not champertous. Aetna Life Ins. Co. v. Weck, 163 Ky. 37 , 173 S.W. 317, 1915 Ky. LEXIS 181 ( Ky. 1915 ).

Contract for sale of undivided half interest in real estate with standing timber, and entire interest in certain portions of the timber, which contained a provision that grantee would defend all litigation arising out of ownership of land or timber, was not void for champerty or maintenance. Fordson Coal Co. v. Garrard, 277 Ky. 218 , 125 S.W.2d 977, 1939 Ky. LEXIS 611 ( Ky. 1939 ).

Where assignor assigned claims against county and assignee agreed to bear all expenses connected with court procedure to establish validity of indebtedness against county, the assignment was not invalid as being champertous and maintenous. Farmers State Bank v. Owsley County, 314 Ky. 856 , 238 S.W.2d 471, 1951 Ky. LEXIS 815 ( Ky. 1951 ).

7. — With Attorney.

This section has been construed several times by the Kentucky courts as not prohibiting a contingent fee contract by an attorney, and a provision that the attorney agrees to pay the cost of the action out of the amount paid him for his services will not render the contract champertous. Bolt v. Reynolds Metal Co., 42 F. Supp. 58, 1941 U.S. Dist. LEXIS 2363 (D. Ky. 1941 ).

A contract to pay an attorney an amount equal to a specified part of the recovery is valid. Raymond v. McCleery, 15 Ky. L. Rptr. 269 (1893); Bowser v. Patrick, 65 S.W. 824, 23 Ky. L. Rptr. 1578 , 1901 Ky. LEXIS 338 ( Ky. 1901 ); Leslie v. York, 112 Ky. 712 , 66 S.W. 751, 23 Ky. L. Rptr. 2076 , 1902 Ky. LEXIS 222 ( Ky. 1902 ); Newport Rolling Mill Co. v. Hall, 147 Ky. 598 , 144 S.W. 760, 1912 Ky. LEXIS 293 ( Ky. 1912 ); Ratliff v. Sinberg, 258 Ky. 203 , 79 S.W.2d 717, 1935 Ky. LEXIS 136 ( Ky. 1935 ).

The fact that the attorney is to pay the costs out of the amount determined upon as his fee is not objectionable. Wood-Heck v. Roll, 183 Ky. 128 , 208 S.W. 768, 1919 Ky. LEXIS 448 ( Ky. 1919 ).

An assignment to an attorney of a note as security for a fee does not constitute maintenance. Roberts v. Allen, 244 Ky. 353 , 50 S.W.2d 965, 1932 Ky. LEXIS 429 ( Ky. 1932 ).

Assignment of note by plaintiff to one of attorneys who was bringing action on note for him, after agreement with defendant that plaintiff would accept less than face value in settlement of action, was not champertous, where defendant did not perform agreement and there was evidence that attorney had been previously interested in purchasing note in question together with other securities owned by plaintiff. Combs v. Salyer, 291 Ky. 592 , 165 S.W.2d 40, 1942 Ky. LEXIS 273 ( Ky. 1942 ).

An agreement to measure an attorney’s fee by value of what is recovered is valid upon the theory that the attorney does not gain any share in title of the thing he has engaged to recover. First Nat'l Bank v. Progressive Casualty Ins. Co., 517 S.W.2d 226, 1974 Ky. LEXIS 19 ( Ky. 1974 ).

Where drafts given in settlement of clients’ claims by insurance company were made payable to clients and to their attorney, attorney’s contingent fee arrangement gave him no proprietary interest in the drafts. First Nat'l Bank v. Progressive Casualty Ins. Co., 517 S.W.2d 226, 1974 Ky. LEXIS 19 ( Ky. 1974 ).

8. Champerty as a Defense.

Champerty could only be pleaded by a party thereto as a defense except when a creditor transferred a cause of action to a third person who was to receive a part of the proceeds for prosecuting the cause. (decided under prior law) Caldwell's Adm'r v. Shepherd's Heirs, 22 Ky. 389 , 1827 Ky. LEXIS 303 ( Ky. 1827 ).

Champerty under this section can only be pleaded by a party thereto as a defense. Wemhoff v. Rutherford, 98 Ky. 91 , 32 S.W. 288, 17 Ky. L. Rptr. 659 , 1895 Ky. LEXIS 21 ( Ky. 1895 ); Bowser v. Patrick, 65 S.W. 824, 23 Ky. L. Rptr. 1578 , 1901 Ky. LEXIS 338 ( Ky. 1901 ); Cumberland Tel. & Tel. Co. v. Maxberry, 134 Ky. 642 , 121 S.W. 447, 1909 Ky. LEXIS 410 ( Ky. 1909 ); Aetna Life Ins. Co. v. Weck, 163 Ky. 37 , 173 S.W. 317, 1915 Ky. LEXIS 181 ( Ky. 1915 ).

In a suit by plaintiff’s attorney against defendant on defendant’s promise to pay the fee of plaintiff’s attorney, the defendant cannot plead champerty. Bowser v. Patrick, 65 S.W. 824, 23 Ky. L. Rptr. 1578 , 1901 Ky. LEXIS 338 ( Ky. 1901 ).

When plaintiff’s attorney sues defendant to enforce the statutory lien, not relying on the promise of plaintiff to pay the fee, the defendant can plead champerty. Chreste v. Louisville R. Co., 173 Ky. 486 , 191 S.W. 265, 1917 Ky. LEXIS 475 ( Ky. 1917 ).

9. Liability Under Champertous Contract.

One accepting services under a champertous contract had to pay a fair and reasonable compensation therefor. (decided under prior law) Rust v. Larue, 14 Ky. 411 , 1823 Ky. LEXIS 209 ( Ky. 1823 ); Caldwell's Adm'r v. Shepherd's Heirs, 22 Ky. 389 , 1827 Ky. LEXIS 303 ( Ky. 1827 ).

One accepting services under a champertous contract must pay a fair and reasonable compensation therefor. Leonard v. Boyd, 71 S.W. 508, 24 Ky. L. Rptr. 1320 , 1903 Ky. LEXIS 304 ( Ky. 1903 ); Rogers v. Samples, 207 Ky. 150 , 268 S.W. 799, 1925 Ky. LEXIS 37 ( Ky. 1925 ).

When the parties are in pari delicto, an executed champertous contract will not be disturbed. But when the guilt rests chiefly upon one, equity will be done. Rogers v. Samples, 207 Ky. 150 , 268 S.W. 799, 1925 Ky. LEXIS 37 ( Ky. 1925 ).

Cited:

Woods v. White, 253 Ky. 263 , 69 S.W.2d 349, 1934 Ky. LEXIS 641 ( Ky. 1934 ); Price v. Ferra, 258 S.W.2d 460, 1953 Ky. LEXIS 831 ( Ky. 1953 ); Coffey v. Jefferson County Bd. of Education, 756 S.W.2d 155, 1988 Ky. App. LEXIS 116 (Ky. Ct. App. 1988).

Research References and Practice Aids

Cross-References.

Contract violating blue sky law, remedies, KRS 292.480 .

372.070. Sale of land adversely held — Subjection to claims of judgment creditor.

  1. Any sale or conveyance, including those made under execution, of any land, or the pretended right or title thereto, of which any other person has adverse possession at the time of the sale or conveyance, is void; but this section does not render void any devise of land in adverse possession.
  2. A judgment creditor, after a return on the execution of no property found, may file a petition in equity to subject any real estate to which the defendant has legal or equitable title even if the property is in the adverse possession of another. The person in possession shall be made a defendant in any such action.

History. 210.

NOTES TO DECISIONS

1. Constitutionality.

This section does not violate either the privilege and immunity clause or the due process clause of the federal constitution. Begley v. Erasmie, 205 Ky. 240 , 265 S.W. 833, 1924 Ky. LEXIS 123 ( Ky. 1924 ), writ of error dismissed, 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825, 1927 U.S. LEXIS 731 (U.S. 1927).

2. Purpose.

The purpose of the champerty statutes was to operate on the remedy, not to destroy the mere title. (decided under prior law) Shepherd v. McIntire, 35 Ky. 574 , 1837 Ky. LEXIS 119 ( Ky. 1837 ).

The statute was intended to prohibit sales of doubtful interests in land to strangers to the title. (decided under prior law) Russell v. Doyle, 84 Ky. 386 , 1 S.W. 604, 8 Ky. L. Rptr. 366 , 1886 Ky. LEXIS 75 ( Ky. 1886 ).

The law of champerty was intended as a shield to the possession, and not as a weapon of defense. (decided under prior law) Luen v. Wilson, 85 Ky. 503 , 3 S.W. 911, 9 Ky. L. Rptr. 83 , 1887 Ky. LEXIS 67 ( Ky. 1887 ).

This section is intended to prohibit sales of doubtful interests in land to strangers to the title. Hegan v. Pendennis Club, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 1901 Ky. LEXIS 326 ( Ky. 1901 ).

This section is for the protection of the adverse holder. Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ).

The champerty statute is designed to discourage litigation, and therefore, is properly used as a shield. Great W. Land Mgmt. v. Slusher, 939 S.W.2d 865, 1996 Ky. LEXIS 71 ( Ky. 1996 ), modified, 1997 Ky. LEXIS 41 (Ky. Mar. 27, 1997).

The object of this section is to discourage litigation by prohibiting one who has a doubtful title, to clear which he is not willing to sue, from selling it to another person, thereby encouraging strife. Strunk v. Perry, 314 Ky. 658 , 236 S.W.2d 912, 1951 Ky. LEXIS 717 ( Ky. 1951 ).

The conveyance by a bona fide claimant during the pendency of an action to enforce its claim, is not prohibited, as to void a transfer of one’s interest in property after commencing an action asserting that interest, would not appear to further the purpose of this section. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

The champerty statute is designed to discourage litigation, and therefore, is properly used as a shield. Great W. Land Mgmt. v. Slusher, 939 S.W.2d 865, 1996 Ky. LEXIS 71 ( Ky. 1996 ), modified, 1997 Ky. LEXIS 41 (Ky. Mar. 27, 1997).

3. Construction.

The tendency is to restrict the operation of the champerty statute. Hegan v. Pendennis Club, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 1901 Ky. LEXIS 326 ( Ky. 1901 ).

4. Applicability.

This section does not apply to judicial sales. Ward v. Edge, 100 Ky. 757 , 39 S.W. 440, 19 Ky. L. Rptr. 59 , 1897 Ky. LEXIS 53 ( Ky. 1897 ); Carlisle v. Cassady, 46 S.W. 490, 20 Ky. L. Rptr. 562 (1898); Kidd v. Central Trust & Safe Deposit Co., 65 S.W. 355, 23 Ky. L. Rptr. 1402 , 1901 Ky. LEXIS 363 (Ky. Ct. App. 1901); Cook v. Burton, 92 S.W. 322, 29 Ky. L. Rptr. 28 (1906); Bryant v. Prewitt, 132 Ky. 799 , 117 S.W. 343, 1909 Ky. LEXIS 1 53 ( Ky. 1909 ); Brown v. White, 153 Ky. 452 , 156 S.W. 96, 1913 Ky. LEXIS 873 ( Ky. 1913 ); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ); Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ); Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ); Lashley v. Duvall, 226 Ky. 685 , 11 S.W.2d 708, 1928 Ky. LEXIS 151 ( Ky. 1928 ); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ); Wilson v. Chappell, 244 Ky. 521 , 51 S.W.2d 669, 1932 Ky. LEXIS 468 ( Ky. 1932 ); Flinn v. Blakeman, 254 Ky. 416 , 71 S.W.2d 961, 1934 Ky. LEXIS 90 ( Ky. 1934 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ); Chapman v. Hounshell, 258 Ky. 214 , 79 S.W.2d 685, 1935 Ky. LEXIS 125 ( Ky. 1935 ); Noble v. Hubbard, 286 Ky. 100 , 149 S.W.2d 775, 1941 Ky. LEXIS 218 ( Ky. 1941 ).

This section does not apply to bankruptcy sales. Carlisle v. Cassady, 46 S.W. 490, 20 Ky. L. Rptr. 562 (1898); Brown v. White, 153 Ky. 452 , 156 S.W. 96, 1913 Ky. LEXIS 873 ( Ky. 1913 ); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ).

This section does not apply to easements. Hegan v. Pendennis Club, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 1901 Ky. LEXIS 326 ( Ky. 1901 ); Williams v. Poole, 103 S.W. 336, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 31 Ky. L. Rptr. 757 , 1907 Ky. LEXIS 349 ( Ky. 1907 ); R. W. Kevil & Sons v. Wilford, Stunston & Co., 104 S.W. 348, 31 Ky. L. Rptr. 1000 (1907); George T. Stagg Co. v. Frankfort Modes Glass Works, 175 Ky. 330 , 194 S.W. 333, 1917 Ky. LEXIS 320 ( Ky. 1917 ).

This section does not apply to private passways. Hegan v. Pendennis Club, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 1901 Ky. LEXIS 326 ( Ky. 1901 ).

This section does not apply to a deed executed by a vendor who has already secured judgment against the occupants for possession of the land, although habere facias has not yet been issued. Miller v. Farmers' Bank of Kentucky, 75 S.W. 218, 25 Ky. L. Rptr. 373 (1903); Bartley v. Redmon's Adm'x, 115 S.W. 831 ( Ky. 1909 ); Cryer v. McGuire, 148 Ky. 100 , 146 S.W. 402, 1912 Ky. LEXIS 412 ( Ky. 1912 ); Sears v. Collie, 148 Ky. 444 , 146 S.W. 1117, 1912 Ky. LEXIS 472 ( Ky. 1912 ), overruled, Cadden v. Commonwealth, 242 S.W.2d 409, 1951 Ky. LEXIS 1046 ( Ky. 1951 ); Green v. Hammons, 232 Ky. 59 , 22 S.W.2d 422, 1929 Ky. LEXIS 389 ( Ky. 1929 ).

The champerty statutes do not apply to franchises. People's Electric Light & Power Co. v. Capital Gas & Electric Light Co., 116 Ky. 76 , 75 S.W. 280, 25 Ky. L. Rptr. 327 , 1903 Ky. LEXIS 182 ( Ky. 1903 ).

This section does not apply to a deed executed by a vendor who has already secured judgment against the occupants for possession of the land, although habere facias has not yet issued, unless the adverse holding has continued until the judgment has become unavailing. Perry v. Eagle Coal Co., 170 Ky. 824 , 186 S.W. 875, 1916 Ky. LEXIS 136 ( Ky. 1916 ).

This section does not apply to deeds from a trustee to the beneficiaries. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

This section does not apply to tax sales. Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ); Fordson Coal Co. v. Jackson, 32 F.2d 1000, 1929 U.S. App. LEXIS 3941 (6th Cir. Ky. 1929 ); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 1 03 ( Ky. 1930 ); Wilson v. Chappell, 244 Ky. 521 , 51 S.W.2d 669, 1932 Ky. LEXIS 468 ( Ky. 1932 ); Flinn v. Blakeman, 254 Ky. 416 , 71 S.W.2d 961, 1934 Ky. LEXIS 90 ( Ky. 1934 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

This section relates exclusively to sales and conveyances of real estate in the adverse possession of another who claims absolute title thereto; it does not apply to sales of personalty and was not applicable in a suit by purchaser of fee to enjoin purchaser of timber from cutting the timber where purchaser knew the timber was being cut and removed prior to and at the time of his purchase but had been assured the contract had failed by failure to pay an installment, which installment was paid to and accepted by seller after the deed to the fee was made. Patton v. Lucy, 285 Ky. 694 , 148 S.W.2d 1039, 1940 Ky. LEXIS 611 ( Ky. 1940 ).

This section is of a penal nature and it should not be applied unless the evidence is clear and convincing. Lipps v. Marcum, 297 Ky. 225 , 179 S.W.2d 884, 1944 Ky. LEXIS 712 ( Ky. 1944 ).

This champerty section does not apply to a tax deed because the one who owns and is in possession of the land does not hold it adversely to the sovereign’s claim for taxes. Combs v. Combs, 306 Ky. 553 , 208 S.W.2d 732, 1948 Ky. LEXIS 608 ( Ky. 1948 ).

Where defendants have good paper title as well as adverse possession, it is not necessary for the court to consider whether deeds under which defendants claimed were champertous. Shepherd v. Morgan, 246 S.W.2d 131, 1951 Ky. LEXIS 1270 ( Ky. 1951 ).

5. Meaning of Adverse Possession.

Under the provisions of this section, the words “adverse possession” mean that the possession must be shown to be of that character and dignity as would in the statutory period ripen into title by adverse possession. Tankersley v. Sell, 311 Ky. 832 , 226 S.W.2d 17, 1950 Ky. LEXIS 562 ( Ky. 1950 ).

6. Adverse Possession.

There was no adverse possession unless there was someone on the land against whom the claimant could bring action to try his right. (decided under prior law) Moss v. Scott, 32 Ky. 271 , 1834 Ky. LEXIS 77 ( Ky. 1834 ).

The mere cutting of firewood or timber was not such adverse possession as would render a deed to said land champertous. (decided under prior law) Wickliffe v. Wilson, 41 Ky. 43 , 1841 Ky. LEXIS 76 ( Ky. 1841 ). See 9 S.W. 828, 10 Ky. L. Rptr. 622 .

One who purchased subject to dower and then held in opposition by notorious acts held adversely to the widow. (decided under prior law) Kinsolving v. Pierce, 57 Ky. 782 , 1857 Ky. LEXIS 95 ( Ky. 1857 ).

Possession could be adverse under the statute of limitations without being adverse under the champerty law. (decided under prior law) Barret v. Coburn, 60 Ky. 510 , 1861 Ky. LEXIS 32 ( Ky. 1861 ); Henderson v. Dupree, 82 Ky. 678 , 6 Ky. L. Rptr. 651 , 6 Ky. L. Rptr. 702 , 1885 Ky. LEXIS 35 (Ky. Ct. App. 1885), limited, McCormick Harvesting Mach. Co. v. Martin, 51 S.W. 1021, 21 Ky. L. Rptr. 309 (1899); Moore v. Baker, 92 Ky. 518 , 18 S.W. 363, 13 Ky. L. Rptr. 724 , 1892 Ky. LEXIS 17 ( Ky. 1892 ).

A fraudulent sale by an execution debtor prior to levy was voidable by the purchaser under the execution. Hence, the possession of the fraudulent vendee was not adverse, but was in trust for the purchaser under the execution. (decided under prior law) Daniel v. McHenry, 67 Ky. 277 , 1868 Ky. LEXIS 118 ( Ky. 1868 ).

A stranger could not claim to be the adverse possessor of lands merely by virtue of a wrongful attornment to him by the tenants of the holder of the legal title. (decided under prior law) Turner v. Thomas, 76 Ky. 518 , 1877 Ky. LEXIS 100 ( Ky. 1877 ).

Possession may be adverse under the statute of limitations without being adverse under the champerty statute. Sullivan v. Hill, 112 S.W. 564, 33 Ky. L. Rptr. 962 (1908); Perry v. Eagle Coal Co., 170 Ky. 824 , 186 S.W. 875, 1916 Ky. LEXIS 136 ( Ky. 1916 ); Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ); Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 (Ky. 1916); Kentucky Union Co. v. Hevner, 210 Ky. 121 , 275 S.W. 513, 1924 Ky. LEXIS 23 ( Ky. 1924 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ); Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ).

The possession of the vendee holding under an executory contract of purchase is not adverse to his vendor unless or until the vendee has performed the conditions of his contract, or by his acts or otherwise repudiated his vendor’s title. Deaton v. Morris, 308 Ky. 754 , 215 S.W.2d 854, 1948 Ky. LEXIS 1038 ( Ky. 1948 ).

In an action to quiet title, constructive possession by virtue of occupancy of other portions of a 1,600-acre tract under color of title could not prevail against actual possession, through occupancy, fencing and cultivation, of a small parcel by predecessors of grantees. Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855, 1959 Ky. LEXIS 342 ( Ky. 1959 ).

Trial court properly granted summary judgment to appellee with respect to appellants’ action, seeking a declaration that they were the legal owners of a portion of land upon which appellee’s mobile home sat, as the evidence sufficiently showed that she adversely possessed the property, such that appellants’ deed was champertous under KRS 372.070(1). Henninger v. Brewster, 357 S.W.3d 920, 2012 Ky. App. LEXIS 7 (Ky. Ct. App. 2012).

There was no merit to appellants’ claim that a trial court erroneously granted summary judgment to appellee in appellants’ action, seeking a declaration that they were the legal owners of a portion of land upon which appellee’s mobile home sat, as appellants had sufficient time to engage in additional discovery to find more evidence to refute appellee’s claim of hostility for purposes of the adverse possession. Henninger v. Brewster, 357 S.W.3d 920, 2012 Ky. App. LEXIS 7 (Ky. Ct. App. 2012).

Although appellee’s predecessor-in-interest had a mistaken belief as to the property’s boundary line when he placed his mobile home down, such did not negate the hostile element necessary to establish adverse possession of a portion of the neighboring lot under KRS 372.070(1). Henninger v. Brewster, 357 S.W.3d 920, 2012 Ky. App. LEXIS 7 (Ky. Ct. App. 2012).

Trial court erred in finding that neighbors were entitled to certain property based on the champerty doctrine, for purposes of KRS 372.070 , and the transfer from two children to their mother was champertous and void; the neighbors were adversely possessing a portion of the property at the time of transfer, but the doctrine invalidated the transfer to the mother and would have permitted the neighbors to buy the property from the children. McAlpin v. Bailey, 376 S.W.3d 613, 2012 Ky. App. LEXIS 86 (Ky. Ct. App. 2012).

7. — Conveyances by Others.

A conveyance of land held adversely by another was champertous and void. (decided under prior law) Kercheval v. Triplett’s Heirs, 8 Ky. 493 , 1 A.K. Marsh. 493, 1819 Ky. LEXIS 55 ( Ky. 1819 ); Ewing’s Heirs v. Savary, 7 Ky. (4 Bibb) 424, 1816 Ky. LEXIS 98 (1816); Conn’s Heirs v. Manifee, 9 Ky. 396 , 1820 Ky. LEXIS 100 (1820); Meredith v. Kennedy, 16 Ky. 516 , 1 Litt. Sel. Cas. 516, 1821 Ky. LEXIS 82 ( Ky. 1821 ); Young v. Kimberland, 12 Ky. (2 Litt.) 223, 1822 Ky. LEXIS 220 (1822); Smith’s Heirs v. Roberson, 28 Ky. (5 J.J. Marsh.) 624 (1831); Young v. McCampbell, 29 Ky. 490 , 1831 Ky. LEXIS 224 ( Ky. 1831 ); Clay v. Wyatt, 29 Ky. 583 , 1831 Ky. LEXIS 265 ( Ky. 1831 ); Doe v. Lively, 31 Ky. 57 , 31 Ky. 60 , 1833 Ky. LEXIS 18 (Ky. Ct. App. 1833); Craig v. Austin, 31 Ky. 517 , 1833 Ky. LEXIS 135 (Ky. Ct. App. 1833); Moss v. Scott, 32 Ky. 271 , 1834 Ky. LEXIS 77 ( Ky. 1834 ); Griffith v. Dicken, 34 Ky. 561 , 1836 Ky. LEXIS 12 3 ( Ky. 1836 ); Shepherd v. McIntire, 35 Ky. 57 4 , 1837 Ky. LEXIS 119 ( Ky. 1837 ); Cardwell v. Spriggs' Heirs, 37 Ky. 36 , 1838 Ky. LEXIS 97 ( Ky. 1838 ); Ring v. Gray, 45 Ky. 36 8 , 1846 Ky. LEXIS 12 ( Ky. 1846 ); Kinsolving v. Pierce, 57 Ky. 782 , 1857 Ky. LEXIS 95 ( Ky. 1857 ); Harman v. Brewster, 70 Ky. 355 , 1870 Ky. LEXIS 71 ( Ky. 1870 ); Scott v. Osenton, 7 Ky. Op. 267, 1873 Ky. LEXIS 546 (Ky. Ct. App. Oct. 31, 1873); Alexander v. Vandyke, 9 Ky. Op. 747, 1877 Ky. LEXIS 456 (Ky. Ct. App. Nov. 30, 1877); Miller v. Mulvey, 7 Ky. L. Rptr. 40 (1885); Luen v. Wilson, 85 Ky. 503 , 3 S.W. 911, 9 Ky. L. Rptr. 83 , 1887 Ky. LEXIS 67 ( Ky. 1887 ); Bentley v. Childers, 7 S.W. 628, 9 Ky. L. Rptr. 954 (1888); Combs v. McQuinn, 9 S.W. 495, 10 Ky. L. Rptr. 550 (1888); Gately v. Weldon, 14 S.W. 680, 12 Ky. L. Rptr. 621 (1890); Laevison v. Baird, 91 Ky. 204 , 15 S.W. 252, 12 Ky. L. Rptr. 786 , 1891 Ky. LEXIS 27 (Ky. Ct. App. 1891).

The void conveyance did not forfeit grantor’s title. (decided under prior law) Meredith v. Kennedy, 16 Ky. 516 , 1821 Ky. LEXIS 82 ( Ky. 1821 ); Wash v. McBrayer, 31 Ky. 565 , 1833 Ky. LEXIS 144 ( Ky. 1833 ); Redman v. Sanders, 32 Ky. 68 , 1834 Ky. LEXIS 18 ( Ky. 1834 ); Griffith v. Dicken, 34 Ky. 561 , 1836 Ky. LEXIS 123 ( Ky. 1836 ); Shepherd v. McIntire, 35 Ky. 574 , 1837 Ky. LEXIS 119 ( Ky. 1837 ); Crowley v. Vaughan, 74 Ky. 517 , 1875 Ky. LEXIS 43 ( Ky. 1875 ).

The void conveyance did not forfeit grantor’s title but his title was forfeited if he agreed for the grantee to sue the adverse possessor in his name for the grantee’s benefit. (decided under prior law) Beaty v. Hudson, 39 Ky. 322 , 1840 Ky. LEXIS 22 ( Ky. 1840 ); Crowley v. Vaughan, 74 Ky. 517 , 1875 Ky. LEXIS 43 ( Ky. 1875 ).

Such conveyances were void even as between the parties. (decided under prior law) Graves v. Leathers, 56 Ky. 665 , 1856 Ky. LEXIS 70 ( Ky. 1856 ).

A conveyance of land held adversely by another is champertous and void. Ratcliffe v. Elam, 21 S.W. 352, 14 Ky. L. Rptr. 772 (1893); Scott v. Mineral Development Co., 130 F. 497, 1904 U.S. App. LEXIS 4189 (6th Cir. Ky. 1 904), cert. denied, 196 U.S. 640, 25 S. Ct. 796, 49 L. Ed. 631, 1905 U.S. LEXIS 1242 (U.S. 1905); Lillie v. Hickman, 25 S.W. 1062, 15 Ky. L. Rptr. 861 (1894); Seale v. Shepherd, 29 S.W. 31, 16 Ky. L. Rptr. 563 (1895); Howard v. Howard, 96 Ky. 445 , 29 S.W. 285, 1895 Ky. LEXIS 95 ( Ky. 1 895); Sneed v. Hope, 30 S.W. 20, 16 Ky. L. Rptr. 871 (1895); Banks v. Collins, 39 S.W. 519, 19 Ky. L. Rptr. 46 (1897); Farmer v. Farmer, 39 S.W. 706, 19 Ky. L. Rptr. 243 (1897); Shaw v. Revel, 51 S.W. 566, 21 Ky. L. Rptr. 348 (1899); Keaton v. Sublett, 109 Ky. 106 , 58 S.W. 528, 22 Ky. L. Rptr. 631 , 1900 Ky. LEXIS 177 ( Ky. 1900 ); West v. Chamberlain, 109 Ky. 194 , 58 S.W. 584, 22 Ky. L. Rptr. 687 , 1900 Ky. LEXIS 18 3 ( Ky. 1900 ); Meek v. Catlettsburg & P. Packet Co., 60 S.W. 484, 22 Ky. L. Rptr. 1318 (1901); Fain v. Miles, 60 S.W. 939, 22 Ky. L. Rptr. 1584 (1901); Higgins v. Howard, 61 S.W. 1016, 22 Ky. L. Rptr. 1863 , 1901 Ky. LEXIS 637 (Ky. Ct. App. 1901); Logan v. Phenix, 66 S.W. 1042, 23 Ky. L. Rptr. 2300 , 1902 Ky. LEXIS 502 (Ky. Ct. App. 1902); Lyttle v. Fitzpatrick, 67 S.W. 988, 24 Ky. L. Rptr. 93 , 1902 Ky. LEXIS 366 (Ky. Ct. App. 1902); Altemus v. Nichols, 115 Ky. 506 , 74 S.W. 221 ( Ky. 1903 ); Stovall v. Haynes, 78 S.W. 895, 25 Ky. L. Rptr. 1789 (1904); Lost Creek Coal Co. v. Napier's Heirs, 89 S.W. 264, 28 Ky. L. Rptr. 369 (1905); Bridgewater v. Byassee, 93 S.W. 35, 29 Ky. L. Rptr. 377 (1906); Interstate Inv. Co. v. Bailey, 93 S.W. 578, 29 Ky. L. Rptr. 46 8 , 1906 Ky. LEXIS 364 (Ky. Ct. App. 1906); Frazier v. Cox, 125 S.W. 148 ( Ky. 1910 ); Tool v. Kinman, 140 Ky. 208 , 130 S.W. 1073, 1910 Ky. LEXIS 207 ( Ky. 1910 ); Muncy v. Smith, 142 Ky. 201 , 133 S.W. 1152, 1911 Ky. LEXIS 145 ( Ky. 1911 ); Wolford v. Smith, 146 Ky. 341 , 142 S.W. 1055, 1912 Ky. LEXIS 106 ( Ky. 1912 ); Saylor v. Taylor, 148 Ky. 627 , 147 S.W. 380, 1912 Ky. LEXIS 509 ( Ky. 1912 ); Scott v. Wolford, 150 Ky. 64 , 149 S.W. 1140, 1912 Ky. LEXIS 832 (Ky. 1912); Ratliff v. Sowards' Guardian, 152 Ky. 97 , 153 S.W. 25, 1913 Ky. LEXIS 600 ( Ky. 1913 ); Henderson v. Clark, 163 Ky. 192 , 173 S.W. 367, 1915 Ky. LEXIS 201 ( Ky. 1915 ); Miniard v. Napier, 167 Ky. 208 , 180 S.W. 363, 1915 Ky. LEXIS 834 ( Ky. 1915 ); Le Moyne v. Neal, 168 Ky. 292 , 181 S.W. 1119, 1916 Ky. LEXIS 542 ( Ky. 1916 ); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ); Mullens v. McCoy, 170 Ky. 547 , 186 S.W. 137, 1916 Ky. LEXIS 72 (Ky. 1916); Martin v. White, 177 Ky. 653 , 197 S.W. 1079, 1917 Ky. LEXIS 636 ( Ky. 1917 ); Dowell v. Dillon, 178 Ky. 531 , 199 S.W. 6, 1917 Ky. LEXIS 747 ( Ky. 1917 ); Gilbert v. Carter, 189 Ky. 476 , 225 S.W. 143, 1920 Ky. LEXIS 454 ( Ky. 192 0 ); Blalock v. Darnell, 191 Ky. 258 , 229 S.W. 1039, 1921 Ky. LEXIS 298 ( Ky. 1921 ); Kentina-Puckett Corp. v. Simpson, 196 Ky. 246 , 244 S.W. 699, 1922 Ky. LEXIS 501 ( Ky. 1922 ); Tennis Coal Co. v. Hensley, 198 Ky. 616 , 250 S.W. 509, 1923 Ky. LEXIS 579 ( Ky. 1923 ); Irwin v. Westwood Real Estate & Development Co., 200 Ky. 760 , 255 S.W. 546, 1923 Ky. LEXIS 18 2 ( Ky. 1923 ); Fordson Coal Co. v. Marcum, 206 Ky. 624 , 268 S.W. 289, 1925 Ky. LEXIS 1006 ( Ky. 1925 ); Riggsby v. Montgomery, 208 Ky. 524 , 271 S.W. 564, 1925 Ky. LEXIS 320 ( Ky. 1925 ); Curry v. Cox, 208 Ky. 653 , 271 S.W. 700, 1925 Ky. LEXIS 359 (Ky. 1925); Colson's Adm'r v. Johnson, 208 Ky. 684 , 271 S.W. 1033, 1925 Ky. LEXIS 365 (Ky. 1925); Davis v. Davis, 211 Ky. 711 , 277 S.W. 1025, 1925 Ky. LEXIS 95 2 (Ky. 1925); Crider v. Kentenia-Catron Corp., 214 Ky. 353 , 283 S.W. 117, 1926 Ky. LEXIS 336 ( Ky. 1926 ); Coombs Land Co. v. Gross, 216 Ky. 64 8, 288 S.W. 289, 1926 Ky. LEXIS 955 ( Ky. 1926 ); Campbell v. Schorr, 224 Ky. 1, 5 S.W.2d 278, 1927 Ky. LEXIS 965 ( Ky. 1927 ); Moren v. Houston, 222 Ky. 785 , 2 S.W.2d 667, 1928 Ky. LEXIS 260 ( Ky. 1928 ); Peters v. Hendricks, 225 Ky. 722 , 9 S.W.2d 1076, 1928 Ky. LEXIS 858 ( Ky. 1928 ); Stephens v. Justice, 226 Ky. 45 , 10 S.W.2d 465, 1928 Ky. LEXIS 18 (Ky. 1928); Lykins v. Keeton, 234 Ky. 421 , 28 S.W.2d 472, 1930 Ky. LEXIS 196 ( Ky. 1930 ); Kentucky Union Co. v. Gilliam, 235 Ky. 316 , 31 S.W.2d 388, 1930 Ky. LEXIS 361 ( Ky. 1930 ); Jones v. O'Connell, 237 Ky. 219 , 35 S.W.2d 290, 1931 Ky. LEXIS 582 ( Ky. 1931 ); Chrisman v. Greer, 239 Ky. 373 , 39 S.W.2d 676, 1931 Ky. LEXIS 795 ( Ky. 1931 ); Rader v. Howell, 246 Ky. 261 , 54 S.W.2d 914, 1932 Ky. LEXIS 741 ( Ky. 1932 ); Kentucky Union Co. v. Cornett, 248 Ky. 360 , 58 S.W.2d 655, 1933 Ky. LEXIS 254 ( Ky. 1933 ); Moore v. Pauley, 250 Ky. 156 , 61 S.W.2d 1106, 1933 Ky. LEXIS 660 ( Ky. 1933 ); Marley v. Baumer, 250 Ky. 682 , 63 S.W.2d 919, 1933 Ky. LEXIS 763 (Ky. 1933); Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ); Smith v. Bryant, 260 Ky. 820 , 86 S.W.2d 1022, 1935 Ky. LEXIS 572 ( Ky. 1935 ); Edwards v. Clark, 261 Ky. 749 , 88 S.W.2d 914, 1935 Ky. LEXIS 72 6 ( Ky. 1935 ); Kentucky River Coal Corp. v. Combs, 272 Ky. 767 , 115 S.W.2d 328, 1938 Ky. LEXIS 201 ( Ky. 1938 ).

A conveyance of land held adversely by another is champertous and voidable. Ft. Jefferson Imp. Co. v. Dupoyster, 108 Ky. 792 , 51 S.W. 810, 21 Ky. L. Rptr. 515 , 1899 Ky. LEXIS 1 ( Ky. 1899 ); Meade v. Ratliff, 133 Ky. 411 , 118 S.W. 271, 1909 Ky. LEXIS 1 83 ( Ky. 1909 ); Doyle v. Cornett, 187 Ky. 584 , 219 S.W. 1059, 1920 Ky. LEXIS 170 ( Ky. 1920 ).

Such conveyances are void even as between the parties. Altemus v. Nichols, 115 Ky. 506 , 74 S.W. 221 ( Ky. 1903 ).

A champertous deed to land adversely held by another is void only to the extent of the land adversely held. Jones v. Gatliff, 113 S.W. 436, 1908 Ky. LEXIS 346 ( Ky. 1908 ); Saylor v. Taylor, 148 Ky. 627 , 147 S.W. 380, 1912 Ky. LEXIS 509 ( Ky. 1912 ); Watson v. Wilson, 150 Ky. 27 , 149 S.W. 1120, 1912 Ky. LEXIS 825 ( Ky. 1912 ); Lipps v. Turner, 164 Ky. 626 , 176 S.W. 42, 1915 Ky. LEXIS 435 ( Ky. 1915 ); Colson's Adm'r v. Johnson, 208 Ky. 684 , 271 S.W. 1033, 1925 Ky. LEXIS 365 ( Ky. 1925 ); Pioneer Coal Co. v. Asher, 210 Ky. 498 , 276 S.W. 487, 1925 Ky. LEXIS 716 ( Ky. 1925 ); Moren v. Houston, 222 Ky. 785 , 2 S.W.2d 667, 1928 Ky. LEXIS 260 ( Ky. 1928 ); Peters v. Hendricks, 225 Ky. 722 , 9 S.W.2d 1076, 1928 Ky. LEXIS 858 ( Ky. 1928 ); Stephens v. Justice, 226 Ky. 45 , 10 S.W.2d 465, 1928 Ky. LEXIS 18 (Ky. 1928); Pioneer Coal Co. v. Asher, 226 Ky. 488 , 11 S.W.2d 116, 1928 Ky. LEXIS 116 (Ky. 1928); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ); Howind v. Scheben, 233 Ky. 139 , 25 S.W.2d 57, 1930 Ky. LEXIS 513 ( Ky. 1930 ); Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ); Dotson v. Pinson, 242 Ky. 640 , 47 S.W.2d 58, 1932 Ky. LEXIS 326 ( Ky. 1932 ).

The void conveyance does not forfeit grantor’s title. Holliday v. Tennis Coal Co., 215 Ky. 551 , 286 S.W. 773, 1926 Ky. LEXIS 758 ( Ky. 1926 ).

An adverse possession may be abandoned, and a deed thereafter executed is valid. Lanham v. Huff, 228 Ky. 139 , 14 S.W.2d 402, 1929 Ky. LEXIS 495 ( Ky. 1929 ).

Where, at time plaintiff acquired deed, real estate was in adverse possession of those under whom defendant claimed, plaintiff’s deed was void under this section. Kentucky River Coal Corp. v. Combs, 272 Ky. 767 , 115 S.W.2d 328, 1938 Ky. LEXIS 201 ( Ky. 1938 ).

Under conflicting evidence, chancellor’s finding that deed was champertous only as to portion of tract actually occupied adversely was sustained. Tyree v. Lucas, 279 Ky. 625 , 131 S.W.2d 711, 1939 Ky. LEXIS 323 ( Ky. 1939 ).

Deeds to land adversely held by another are champertous and void only to the extent of the land actually held adversely, and not as to the entire boundary. Jones v. Hargis, 286 Ky. 353 , 150 S.W.2d 928, 1941 Ky. LEXIS 270 ( Ky. 1941 ).

Under subsection (1) of this section, and the construction placed thereon in innumerable decisions, the conveyance of land which is in adverse possession of another is champertous and void. Reynolds v. Thomas Forman Co., 295 Ky. 41 , 174 S.W.2d 132, 1943 Ky. LEXIS 214 ( Ky. 1943 ).

Before one is subjected to this section’s severe penalty of forfeiture, he should have fair knowledge that he was conveying land then held and claimed adversely by another. Saulsberry v. Maddix, 125 F.2d 430, 1942 U.S. App. LEXIS 4833 (6th Cir. Ky.), cert. denied, 317 U.S. 643, 63 S. Ct. 36, 87 L. Ed. 518, 1942 U.S. LEXIS 349 (U.S. 1942).

Where an adverse claimant is in the actual possession and occupancy of land or any part thereof when a subsequent purchase occurs, the subsequent purchaser is deemed to have constructive notice of the title under which the claimant occupies the premises. United States v. Certain Lands, 25 F. Supp. 52, 1938 U.S. Dist. LEXIS 1560 (D. Ky. 1938 ).

Where, at time plaintiff purchased city lot, there extended onto the lot a part of a store building previously erected by defendant on an adjoining lot, plaintiff’s claim to the portion of the lot onto which the building extended was champertous and void. Hensley v. Clay, 306 Ky. 482 , 208 S.W.2d 501, 1948 Ky. LEXIS 595 ( Ky. 1948 ).

Where defendant was in open and notorious possession of house and lot at time of conveyance from another person to plaintiff, the fact that defendant had not recorded deed under which he claimed title did not prevent plaintiff’s deed from being champertous. Morning Star Baptist Church v. Bryant, 306 Ky. 721 , 209 S.W.2d 86, 1948 Ky. LEXIS 643 ( Ky. 1948 ).

Deeds were champertous and void where grantor agreed in deed to bear all expense of any litigation which might be required to clear title and which grantee knew had been in possession of defendant. Gregory v. First State Bank, 305 S.W.2d 538, 1957 Ky. LEXIS 323 ( Ky. 1957 ).

Where party acquired title to property during the pendency of litigation over the ownership of parts thereof resulting from overlapping patents, the conveyance was not champertous for the reason that it was not shown that any part of the property acquired by the party during the litigation was in the actual possession of anyone at the time the deed was executed. J. Walter Wright Lumber Co. v. Baker, 395 S.W.2d 365, 1965 Ky. LEXIS 142 ( Ky. 1965 ).

Deed by board of education seeking to convey land held in open adverse possession by another was void under champerty statute whether or not adverse possession would have run against the Commonwealth, since the occupant’s possession was sufficient to give the grantee notice of the claim and was of the type to establish adverse possession. Meade v. Sturgill, 467 S.W.2d 363, 1971 Ky. LEXIS 376 ( Ky. 1971 ).

A conveyance of land is void to the extent it includes land held by one other than the grantor, in such a manner that if held for the statutory period the holding would ripen into title, even though the adverse holding originated because of a mistaken belief by the adverse holder as to the true location of the boundary line. Johnson v. Kirk, 648 S.W.2d 878, 1983 Ky. App. LEXIS 282 (Ky. Ct. App. 1983).

8. — Contemporaneous with Deed.

The holder of a void patent purchased title under the senior patent at a time when a third person was in possession. The purchase was champertous. Bowling's Heirs v. Roark, 24 S.W. 4, 15 Ky. L. Rptr. 499 (1893).

A previous occupancy or claim, however notorious and sufficient, will not avail unless the facts show adverse occupancy contemporaneous with the deed sought to be evaded under it, as would have brought to the notice of an inquirer or intended purchaser the fact of the occupier’s hostile claim. Saulsberry v. Maddix, 125 F.2d 430, 1942 U.S. App. LEXIS 4833 (6th Cir. Ky.), cert. denied, 317 U.S. 643, 63 S. Ct. 36, 87 L. Ed. 518, 1942 U.S. LEXIS 349 (U.S. 1942).

Where defendant knew at the time he purchased a disputed lot that the plaintiff claimed to own it, a material issue of fact existed as to whether plaintiff held the lot by adverse possession of the character which would eventually ripen into title, thus precluding summary judgment in plaintiff’s action to quiet title in her. Vaughan v. Holderer, 531 S.W.2d 520, 1975 Ky. LEXIS 45 ( Ky. 1975 ).

The adverse possession must exist at the time the deed was made. Cherry Bros. v. Tennessee C. R. Co., 222 Ky. 79 , 299 S.W. 1099, 1927 Ky. LEXIS 862 ( Ky. 1927 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ).

Plea of champerty in grantee’s suit to have tax deed declared void could not be sustained because the evidence clearly showed that holder of tax deed under irregular sale was neither actually nor constructively in possession of the land when conveyance was made by person in whose name property was listed and who was in possession. Hammonds v. Risner, 280 Ky. 40 , 132 S.W.2d 533, 1939 Ky. LEXIS 65 ( Ky. 1939 ).

A deed is not champertous unless another has adverse possession of the land conveyed. Combs v. Combs, 288 Ky. 162 , 155 S.W.2d 764, 1941 Ky. LEXIS 70 ( Ky. 1941 ).

Conveyance of land adversely held is champertous only when someone other than the grantor is in possession and is claiming adversely to the grantor; consequently, to avoid a deed, such adverse possession must exist at the time of the deed without regard to the length of time the adverse possession has existed prior thereto. Deaton v. Morris, 308 Ky. 754 , 215 S.W.2d 854, 1948 Ky. LEXIS 1038 ( Ky. 1948 ).

Where plaintiff had purchased property, fenced it, built a garage on it and for 28 years made a garden on it, she acquired ownership by adverse possession and was entitled to damages for the wrongful taking over of the property by another under a purported deed. Walden v. Baker, 343 S.W.2d 797, 1961 Ky. LEXIS 431 ( Ky. 1961 ).

The adverse possession contemplated by this section must be actual and not constructive, and it must exist contemporaneously with the execution of the deed. J. Walter Wright Lumber Co. v. Baker, 395 S.W.2d 365, 1965 Ky. LEXIS 142 ( Ky. 1965 ).

9. — Length of Time.

The duration of the adverse holding is immaterial. Cherry Bros. v. Tennessee C. R. Co., 222 Ky. 79 , 299 S.W. 1099, 1927 Ky. LEXIS 862 ( Ky. 1927 ); Phillips v. American Ass'n, 259 Ky. 402 , 82 S.W.2d 456, 1935 Ky. LEXIS 320 ( Ky. 1935 ); Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ); Fordson Coal Co. v. Collins, 268 Ky. 331 , 104 S.W.2d 985, 1937 Ky. LEXIS 449 ( Ky. 1937 ).

To constitute adverse possession, it need not have been for any specific length of time “if it was such as would have ripened into title by reason of its adverse character if it had continued uninterruptedly for the prescribed period.” Kentucky West Virginia Gas Co. v. Woods, 110 F.2d 94, 1940 U.S. App. LEXIS 4959 (6th Cir. Ky. 1940 ).

In order to make a deed champertous and therefore void under this section, it is not necessary that the possession be for any specific length of time; it is sufficient if the possession is such as would have ripened into title by reason of its adverse character if it had continued uninterruptedly for the prescribed period. Cox v. Spainhower, 249 S.W.2d 719, 1952 Ky. LEXIS 841 ( Ky. 1952 ).

To render the conveyance champertous and therefore void, it is sufficient if the adverse character of the possession is such as would ripen into a fee simple title under the limitation adverse possession rule had it continued uninterruptedly for the period prescribed. Wells v. Wells, 346 S.W.2d 33, 1961 Ky. LEXIS 288 ( Ky. 1961 ).

Under this section possession by a third party need not be for any specific length of time. Wells v. Wells, 346 S.W.2d 33, 1961 Ky. LEXIS 288 ( Ky. 1961 ).

Where the parties claiming adverse possession had complied with the requisites of this section but there was no privity with the former possessor and they had not held the property adversely for 15 years, there was no adverse possession. Cowherd v. Brooks, 456 S.W.2d 827, 1970 Ky. LEXIS 238 ( Ky. 1970 ).

10. — Sufficiency of.

Although the adverse claimant had to have actual possession, he was not required to live on the land. (decided under prior law) Lillard v. McGee, 26 Ky. 549 , 1830 Ky. LEXIS 120 ( Ky. 1830 ); Woodford v. Young, 12 Ky. Op. 109, 4 Ky. L. Rptr. 981 , 1883 Ky. LEXIS 157 (Ky. Ct. App. May 1, 1883).

The adverse possession had to be an actual possession existing on the date of the conveyance, manifested by open acts of improvement or occupation sufficient to give actual notice and such as would ripen into title if continued for the statutory period. (decided under prior law) Young v. McCampbell, 29 Ky. 490 , 1831 Ky. LEXIS 224 ( Ky. 1831 ); Cardwell v. Spriggs' Heirs, 37 Ky. 36 , 1838 Ky. LEXIS 97 ( Ky. 1838 ); Woodford v. Young, 12 Ky. Op. 109, 4 Ky. L. Rptr. 981 , 1883 Ky. LEXIS 157 (Ky. Ct. App. May 1, 1883); Emerine v. Adams, 5 Ky. Op. 83, 1872 Ky. LEXIS 207 (Ky. Ct. App. Mar. 25, 1872).

The mere cutting of firewood or timber is not such adverse possession as will render a deed to said land champertous. Rice v. West, 42 S.W. 116, 19 Ky. L. Rptr. 832 , 1897 Ky. LEXIS 269 (Ky. Ct. App. 1897); Watson v. Wilson, 150 Ky. 27 , 149 S.W. 1120, 1912 Ky. LEXIS 825 ( Ky. 1912 ); Combs v. Adams, 182 Ky. 762 , 207 S.W. 691, 1919 Ky. LEXIS 414 ( Ky. 1919 ); Bolin v. Buckhorn Coal & Lumber Co., 211 Ky. 847 , 278 S.W. 154, 1925 Ky. LEXIS 980 ( Ky. 1925 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ); Lykins v. Keeton, 234 Ky. 421 , 28 S.W.2d 472, 1930 Ky. LEXIS 196 ( Ky. 1930 ).

The adverse possession must be an actual possession existing on the date of the conveyance, manifested by open acts of improvement or occupation sufficient to give actual notice and such as would ripen into title if continued for the statutory period. Mayes v. Kenton, 64 S.W. 728, 23 Ky. L. Rptr. 1052 , 1901 Ky. LEXIS 576 (Ky. Ct. App. 1901); Krauth v. Hahn, 139 Ky. 607 , 65 S.W. 18, 23 Ky. L. Rptr. 1261 , 1901 Ky. LEXIS 6 (Ky. Ct. App. 1901); Interstate Inv. Co. v. Bailey, 93 S.W. 578, 29 Ky. L. Rptr. 468 , 1906 Ky. LEXIS 364 (Ky. Ct. App. 1906); Brown v. Wallace, 116 S.W. 763, 1909 Ky. LEXIS 530 ( Ky. 1909 ); Brown v. White, 153 Ky. 452 , 156 S.W. 96, 1913 Ky. LEXIS 873 ( Ky. 1913 ); Le Moyne v. Neal, 158 Ky. 316 , 164 S.W. 964, 1914 Ky. LEXIS 6 12 ( Ky. 1914 ); Le Moyne v. Litton, 159 Ky. 652 , 167 S.W. 912, 1914 Ky. LEXIS 854 ( Ky. 1914 ); Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ); George T. Stagg Co. v. Frankfort Modes Glass Works, 175 Ky. 330 , 194 S.W. 333, 1917 Ky. LEXIS 320 ( Ky. 1917 ); Combs v. Adams, 182 Ky. 762 , 207 S.W. 691, 1919 Ky. LEXIS 414 ( Ky. 1919 ); Perry v. Wilson, 183 Ky. 155 , 208 S.W. 776, 1919 Ky. LEXIS 451 ( Ky. 1919 ); Tennis Coal Co. v. Hensley, 198 Ky. 616 , 250 S.W. 509, 1923 Ky. LEXIS 579 ( Ky. 1923 ); Philips v. Hopkins, 208 Ky. 769 , 271 S.W. 1075, 1925 Ky. LEXIS 389 ( Ky. 1925 ); Kentucky Union Co. v. Hevner, 210 Ky. 121 , 275 S.W. 513, 1924 Ky. LEXIS 23 ( Ky. 1924 ); General Refractories Co. v. Morrison, 212 Ky. 411 , 279 S.W. 651, 1926 Ky. LEXIS 159 ( Ky. 1926 ); Sackett v. Miniard, 219 Ky. 765 , 294 S.W. 487, 1927 Ky. LEXIS 446 ( Ky. 1927 ); Moren v. Houston, 222 Ky. 785 , 2 S.W.2d 667, 1928 Ky. LEXIS 260 ( Ky. 1928 ); Pioneer Coal Co. v. Asher, 226 Ky. 488 , 11 S.W.2d 116, 1928 Ky. LEXIS 116 ( Ky. 1928 ); Irvin v. Mumford, 227 Ky. 525 , 13 S.W.2d 520, 1929 Ky. LEXIS 911 ( Ky. 1929 ); Lanham v. Huff, 228 Ky. 139 , 14 S.W.2d 402, 1929 Ky. LEXIS 495 ( Ky. 1929 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 (Ky. 1929); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ); Prewitt v. Bull, 234 Ky. 18 , 27 S.W.2d 399, 1930 Ky. LEXIS 110 ( Ky. 1930 ); Pioneer Coal Co. v. Asher, 237 Ky. 254 , 35 S.W.2d 285, 1931 Ky. LEXIS 579 ( Ky. 1931 ); Jones v. O'Connell, 237 Ky. 219 , 35 S.W.2d 290, 1931 Ky. LEXIS 582 ( Ky. 1931 ); Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 (Ky. 1931); Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ); Moore v. Pauley, 250 Ky. 156 , 61 S.W.2d 1106, 1933 Ky. LEXIS 660 ( Ky. 1933 ); Deupree v. Walker, 255 Ky. 30 , 72 S.W.2d 732, 1934 Ky. LEXIS 178 ( Ky. 1934 ); Phillips v. American Ass'n, 259 Ky. 402 , 82 S.W.2d 456, 1935 Ky. LEXIS 320 ( Ky. 1935 ); Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ).

The mere roaming of cattle over unenclosed lands does not create an adverse possession in their owner. Interstate Inv. Co. v. Bailey, 93 S.W. 578, 29 Ky. L. Rptr. 468 , 1906 Ky. LEXIS 364 (Ky. Ct. App. 1906).

Obtaining a conveyance to land does not amount to an adverse holding. Collingsworth v. Enterprise Land, Mineral & Lumber Co., 99 S.W. 234, 30 Ky. L. Rptr. 467 (1907).

The adverse possession need not be by actual inclosure. Watson v. Wilson, 150 Ky. 27 , 149 S.W. 1120, 1912 Ky. LEXIS 825 ( Ky. 1912 ); Brown v. White, 153 Ky. 452 , 156 S.W. 96, 1913 Ky. LEXIS 873 ( Ky. 1913 ); Caughlin v. Wilson, 167 Ky. 35 , 180 S.W. 40, 1915 Ky. LEXIS 803 ( Ky. 1915 ); Rader v. Howell, 246 Ky. 261 , 54 S.W.2d 914, 1932 Ky. LEXIS 741 ( Ky. 1932 ); Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ).

A stranger cannot claim to be the adverse possessor of lands merely by virtue of a wrongful attornment to him by the tenants of the holder of the legal title. Kentina-Puckett Corp. v. Simpson, 196 Ky. 246 , 244 S.W. 699, 1922 Ky. LEXIS 501 ( Ky. 1922 ).

Erection of building by adverse claimant renders subsequent deed champertous as to the ground covered by the building as well as to such other portion adversely claimed. Cherry Bros. v. Tennessee C. R. Co., 222 Ky. 79 , 299 S.W. 1099, 1927 Ky. LEXIS 862 ( Ky. 1927 ).

The setting up of a “hot dog” stand on a lot without a showing that the lot was inclosed by and reduced to complete dominion by the claimant does not amount to adverse possession. Kash v. Lewis, 224 Ky. 679 , 6 S.W.2d 1098, 1928 Ky. LEXIS 662 ( Ky. 1928 ).

Although the adverse claimant had to have actual possession, he was not required to live on the land. Pioneer Coal Co. v. Asher, 237 Ky. 254 , 35 S.W.2d 285, 1931 Ky. LEXIS 579 ( Ky. 1931 ).

Keeping cattle in barn on tract in question is not such adverse possession as to render a deed champertous. Brown v. Martin, 239 Ky. 146 , 39 S.W.2d 243, 1931 Ky. LEXIS 754 ( Ky. 1931 ).

A mere claim to land does not constitute adverse possession as required herein. Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ).

Planting of some fruit trees by a brother of the tenant does not of itself amount to adverse possession against the owner. Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ).

There must be a claim to ownership. Deupree v. Walker, 255 Ky. 30 , 72 S.W.2d 732, 1934 Ky. LEXIS 178 ( Ky. 1934 ).

Sporadic acts of ownership and possession are insufficient to invoke the champerty act. Stephenson Lumber Co. v. Hurst, 259 Ky. 747 , 83 S.W.2d 48, 1934 Ky. LEXIS 590 ( Ky. 1934 ). See Fordson Coal Co. v. Collins, 268 Ky. 331 , 104 S.W.2d 985, 1937 Ky. LEXIS 449 ( Ky. 1937 ).

Fact that grantor of land had, on complaint of neighbors, cut down a tree, and had planted a few fruit trees and placed a “For Sale” sign on the lot, did not constitute such adverse possession as to make the deed champertous. Gasho v. Lowe, 282 Ky. 518 , 139 S.W.2d 437, 1940 Ky. LEXIS 221 ( Ky. 1940 ).

The possession necessary to render a deed champertous must be actual and not constructive, and must be accompanied by all the elements necessary to ripen into title. Gasho v. Lowe, 282 Ky. 518 , 139 S.W.2d 437, 1940 Ky. LEXIS 221 ( Ky. 1940 ).

The adverse possession required to render void another person’s deed to disputed land must be accompanied by a claim of ownership so that the adverse character of the possession would ripen into a fee simple title if held uninterruptedly for the prescribed period of time. Vaughan v. Holderer, 531 S.W.2d 520, 1975 Ky. LEXIS 45 ( Ky. 1975 ).

Although the adverse possession envisioned by this section does not have to continue for any specific time, it must be in existence when the conveyance complained about is made and must be of the same character that would cause the possession to ripen into title if held for the statutory period. In order to ripen into title if held for the statutory period, the possession must be open, hostile, and notorious to a well-defined boundary; thus giving the world, and especially those in interest, notice of the extent of the claim. Johnson v. Kirk, 648 S.W.2d 878, 1983 Ky. App. LEXIS 282 (Ky. Ct. App. 1983).

This section requires a finding that the party relying on this section was in fact holding the property adversely at the time of the conveyance; if the prior use was permissive and not adverse, then this champerty statute is inapplicable. Shepherd v. Blue Diamond Coal Co., 706 S.W.2d 1, 1985 Ky. App. LEXIS 698 (Ky. Ct. App. 1985).

11. — By Bankrupt.

The possession of the bankrupt is not adverse to the assignee in bankruptcy. Buckler's Adm'r v. Rogers, 54 S.W. 848, 21 Ky. L. Rptr. 1265 , 1900 Ky. LEXIS 339 (Ky. Ct. App. 1900); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ).

12. — By Beneficiaries.

The possession of a beneficiary is not adverse to the trustee unless accompanied by acts indicative of adverse possession. Cyrus v. Holbrook, 106 S.W. 300, 32 Ky. L. Rptr. 466 (1907).

The possession of a beneficiary is not adverse to the trustee. Nunn v. Peak, 130 Ky. 405 , 113 S.W. 493, 1908 Ky. LEXIS 291 ( Ky. 1908 ).

13. — By Coowners.

A tenant in common could sell to his cotenant his interest in land adversely held by another. (decided under prior law) Cummins v. Latham, 20 Ky. 97 , 1826 Ky. LEXIS 128 ( Ky. 1826 ); Russell v. Doyle, 84 Ky. 386 , 1 S.W. 604, 8 Ky. L. Rptr. 366 , 1886 Ky. LEXIS 75 ( Ky. 1886 ).

A tenant in common could sell to a stranger, land possessed amicably by a cotenant. (decided under prior law) Thruston v. Masterson, 39 Ky. 228 , 1839 Ky. LEXIS 124 ( Ky. 1839 ).

Possession of a joint owner was presumed not adverse to his coowner even though he claimed title in part from another source. (decided under prior law) Thruston v. Masterson, 29 Ky. 228 (1839).

The possession of a widow was presumed not adverse to the husband’s heirs and devisees unless a notorious adverse holding be shown. (decided under prior law) Driskell v. Hanks, 57 Ky. 855 , 1857 Ky. LEXIS 107 ( Ky. 1857 ); Frazer v. Naylor, 58 Ky. 593 , 1859 Ky. LEXIS 24 ( Ky. 1859 ).

A tenant in common could sell to a stranger, land possessed amicably by a cotenant, but such a conveyance of land held adversely by the cotenant was champertous. (decided under prior law) Wall v. Wayland, 59 Ky. 155 , 1859 Ky. LEXIS 70 ( Ky. 1859 ); Adkins v. Whalin, 87 Ky. 153 , 7 S.W. 912, 10 Ky. L. Rptr. 17 , 1888 Ky. LEXIS 55 ( Ky. 1888 ).

Possession of a joint owner was presumed not adverse to his coowner unless there was a renunciation of his allegiance to his coowner. (decided under prior law) Wall v. Wayland, 59 Ky. 155 , 1859 Ky. LEXIS 70 ( Ky. 1859 ); Barret v. Coburn, 60 Ky. 510 , 1861 Ky. LEXIS 32 ( Ky. 1861 ); Adkins v. Whalin, 87 Ky. 153 , 7 S.W. 912, 10 Ky. L. Rptr. 17 , 1888 Ky. LEXIS 55 ( Ky. 1888 ).

A tenant in common could sell to a stranger, land possessed amicably by a cotenant, but such a conveyance of land held adversely by the cotenant was champertous unless the cotenant was estopped to deny the title of another. (decided under prior law) Barret v. Coburn, 60 Ky. 510 , 1861 Ky. LEXIS 32 ( Ky. 1861 ).

Stronger evidence of adverse holding was required in the case of a cotenant than in other instances. (decided under prior law) Barret v. Coburn, 60 Ky. 510 , 1861 Ky. LEXIS 32 ( Ky. 1861 ).

The possession of one joint devisee cannot be adverse to that of another joint devisee unless there is a well-marked and defined line to which he claims. Hemmingway v. Cohen, 46 S.W. 495, 20 Ky. L. Rptr. 666 (1898).

A remainderman sold his interest to another subject to dower, the purchaser than renting form the widow. A subsequent deed to the widow of her dower was not champertous. Black v. Allen, 52 S.W. 809, 21 Ky. L. Rptr. 620 , 1899 Ky. LEXIS 324 (Ky. Ct. App. 1899).

In the absence of renunciation and notice, the possession of a life tenant is not adverse to the remainderman. Davis v. Willson, 115 Ky. 639 , 74 S.W. 696, 25 Ky. L. Rptr. 21 , 1903 Ky. LEXIS 142 ( Ky. 1903 ); Ison v. Cornett, 141 Ky. 771 , 133 S.W. 756, 1911 Ky. LEXIS 75 ( Ky. 1911 ); Williams v. Williams, 226 Ky. 13 , 10 S.W.2d 477, 1928 Ky. LEXIS 25 ( Ky. 1928 ); Mart's Ex'r v. Potts, 227 Ky. 125 , 12 S.W.2d 278, 1928 Ky. LEXIS 472 ( Ky. 1928 ); Forman v. Gault, 236 Ky. 213 , 32 S.W.2d 977, 1930 Ky. LEXIS 712 ( Ky. 1930 ).

One who purchases subject to dower and then holds in opposition by notorious acts holds adversely to the widow. Bridgewater v. Byassee, 93 S.W. 35, 29 Ky. L. Rptr. 377 (1906).

The possession of a father who claims an interest by deed and also by right of curtesy, and who occupies the land jointly with his children who inherited an interest therein, is not adverse to them. Wilson v. Sutton, 153 Ky. 96 , 154 S.W. 394, 1913 Ky. LEXIS 772 ( Ky. 1913 ).

Possession of a joint owner is presumed not adverse to his coowner unless there is a renunciation of his allegiance to his coowner. Miller v. Edwards, 187 Ky. 827 , 220 S.W. 1056, 1920 Ky. LEXIS 213 ( Ky. 1920 ); Chrisman v. Greer, 239 Ky. 373 , 39 S.W.2d 676, 1931 Ky. LEXIS 795 ( Ky. 1931 ).

The possession of a father who claims an interest by deed and also by right of curtesy, and who occupies the land jointly with his children who inherited an interest therein, is not adverse to them nor to himself and he may acquire outstanding claims. Webb v. Webb, 200 Ky. 488 , 255 S.W. 137, 1923 Ky. LEXIS 142 ( Ky. 1923 ).

Possession of a joint owner is presumed not adverse to his coowner. Williams v. Williams, 226 Ky. 13 , 10 S.W.2d 477, 1928 Ky. LEXIS 25 ( Ky. 1928 ).

A tenant in common can sell to a stranger, land possessed amicably by a cotenant, but such a conveyance of land held adversely by the cotenant is champertous. Moore v. Pauley, 250 Ky. 156 , 61 S.W.2d 1106, 1933 Ky. LEXIS 660 ( Ky. 1933 ).

14. — By Grantees of Persons Under Disability.

One who is in possession of land as a purchaser from an infant does not hold adversely to the infant within the meaning of this section, and his possession does not render void a conveyance by the infant to another after he arrives of age. Smith v. Cornett, 124 Ky. 63 , 98 S.W. 297, 30 Ky. L. Rptr. 302 , 1906 Ky. LEXIS 240 ( Ky. 1906 ); Miller v. Edwards, 187 Ky. 827 , 220 S.W. 1056, 1920 Ky. LEXIS 213 ( Ky. 1920 ).

The grantee of a married woman whose husband did not join in the deed and who did not seek to recover it within three years of her husband’s death is an adverse holder to her and her subsequent vendee. Big Sandy Co. v. Ramey, 162 Ky. 236 , 172 S.W. 508, 1915 Ky. LEXIS 47 ( Ky. 1915 ).

15. — By Members of Grantor’s Family.

The possession of members of grantor’s family with whom he lives is not adverse to him. Barnes v. F. Weikel Chair Co., 89 S.W. 222, 28 Ky. L. Rptr. 315 (1905).

The possession of members of grantor’s family with whom he lives is not adverse to him in the absence of evidence that such possession was hostile. Virginia Iron, Coal & Coke Co. v. Combs, 186 Ky. 261 , 216 S.W. 846, 1919 Ky. LEXIS 197 ( Ky. 1919 ); Elkhorn Coal Corp. v. Bradley, 216 Ky. 599 , 288 S.W. 326, 1926 Ky. LEXIS 975 ( Ky. 1926 ).

An unrecorded deed executed by a father to his children who lived with him does not make them adverse holders as to a subsequent grantee of the father. Farmer v. R. C. Tway Coal Co., 204 Ky. 356 , 264 S.W. 743, 1924 Ky. LEXIS 448 ( Ky. 1924 ); Philips v. Hopkins, 208 Ky. 769 , 271 S.W. 1075, 1925 Ky. LEXIS 389 ( Ky. 1925 ).

16. — By Tenants.

The possession of a vendor’s tenant was not adverse. (decided under prior law) Baley v. Deakins, 44 Ky. 159 , 1844 Ky. LEXIS 98 ( Ky. 1844 ); Green v. Hammock, 16 S.W. 357, 13 Ky. L. Rptr. 145 (1891).

The possession of a vendor’s tenant was not adverse until it had existed for the statutory period. (decided under prior law) Baley v. Deakins, 44 Ky. 159 , 1844 Ky. LEXIS 98 ( Ky. 1844 ); Smith v. Seaton, 1 Ky. Op. 494, 1867 Ky. LEXIS 310 (Ky. Ct. App. Mar. 2, 1867).

The possession of a vendor’s tenant is not adverse. Taylor v. Combs, 50 S.W. 64, 20 Ky. L. Rptr. 1828 (1899); Nunn v. Peak, 130 Ky. 405 , 113 S.W. 493, 1908 Ky. LEXIS 291 ( Ky. 1908 ); Perry v. Veal, 142 Ky. 441 , 134 S.W. 458, 1911 Ky. LEXIS 201 ( Ky. 1911 ); Terry v. Johnson, 145 Ky. 395 , 140 S.W. 541, 1911 Ky. LEXIS 849 ( Ky. 1911 ); Le Moyne v. Neal, 168 Ky. 292 , 181 S.W. 1119, 1916 Ky. LEXIS 542 ( Ky. 1916 ); Begley v. Erasmie, 205 Ky. 240 , 265 S.W. 833, 1924 Ky. LEXIS 123 ( Ky. 1924 ), writ of error dismissed, 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825, 1927 U.S. LEXIS 731 (U.S. 1927); Williams v. Williams, 226 Ky. 13 , 10 S.W.2d 477, 1928 Ky. LEXIS 25 ( Ky. 1928 ); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ); Louisville & N. R. Co. v. Williams, 245 Ky. 466 , 53 S.W.2d 751, 1932 Ky. LEXIS 618 ( Ky. 1932 ).

A remainderman sold his interest to another, subject to dower, the purchaser then renting from the widow. A subsequent deed to the widow of her dower was not champertous. Black v. Allen, 52 S.W. 809, 21 Ky. L. Rptr. 620 , 1899 Ky. LEXIS 324 (Ky. Ct. App. 1899).

In quiet title action, contention of defendant that deed from former owner to plaintiff was champertous and void under this section because, at time deed was executed, land was held adversely by defendant through his son-in-law, who occupied home on land built by defendant, was not sustained, where it was shown that son-in-law held land as former owner’s tenant under written lease executed prior to the conveyance of the land to plaintiff. Frazier v. Frazier, 303 Ky. 596 , 198 S.W.2d 303, 1946 Ky. LEXIS 900 ( Ky. 1946 ).

17. — By Vendees and Grantees.

The possession of a grantee was adverse to his grantor. (decided under prior law) Ring v. Gray, 45 Ky. 368 , 1846 Ky. LEXIS 12 ( Ky. 1846 ).

The possession of a vendee in possession under a perfect equitable title did not render a deed of his vendor to a third person champertous. (decided under prior law) Akers v. Percifull, 80 Ky. 429 , 4 Ky. L. Rptr. 290 (1884).

A grantee of an infant did not hold adversely to one purchasing the land from the infant after he had attained his majority. (decided under prior law) Moore v. Baker, 92 Ky. 518 , 18 S.W. 363, 13 Ky. L. Rptr. 724 , 1892 Ky. LEXIS 17 ( Ky. 1892 ).

A deed to one in the adverse possession of property is not champertous. Williams v. Thomas, 285 Ky. 776 , 149 S.W.2d 525, 1941 Ky. LEXIS 470 ( Ky. 1941 ).

18. — By Vendors and Assignors.

Unless fraud had been practiced upon him, a vendor who remained in possession did not hold adversely to his vendee, and neither he nor his privies could plead the champerty statute. (decided under prior law) Griffith v. Dicken, 34 Ky. 561 , 1836 Ky. LEXIS 123 ( Ky. 1836 ).

Unless fraud has been practiced upon him, a vendor who remains in possession does not hold adversely to his vendee, and neither he nor his privies may plead the champerty statute until such holding has existed for 15 years. Fain v. Miles, 60 S.W. 939, 22 Ky. L. Rptr. 1584 (1901).

Unless fraud has been practiced upon him, a vendor who remains in possession does not hold adversely to his vendee, and neither he nor his privies may plead the champerty statute. Monahan v. Schwartz, 128 Ky. 375 , 108 S.W. 285, 32 Ky. L. Rptr. 1285 , 1908 Ky. LEXIS 58 ( Ky. 1908 ); Kentland Coal & Coke Co. v. Elswick, 167 Ky. 593 , 181 S.W. 181, 1916 Ky. LEXIS 452 ( Ky. 1916 ); Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ); Middleton v. Commonwealth, 200 Ky. 237 , 254 S.W. 754, 1923 Ky. LEXIS 55 ( Ky. 1923 ).

The owner of a survey who assigned it as security, patent being issued to the assignee, does not hold adversely to the patentee. Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ).

19. — Estoppel to Plead.

When the one in possession was estopped to deny the title of another, he was prohibited from holding adversely, and a deed by the other was not champertous. (decided under prior law) Castleman v. Combs, 23 Ky. 273 , 1828 Ky. LEXIS 88 ( Ky. 1828 ); Jones v. Chiles, 32 Ky. 25 , 1834 Ky. LEXIS 7 ( Ky. 1834 ); Griffith v. Dicken, 34 Ky. 561 , 1836 Ky. LEXIS 123 ( Ky. 1836 ); Baley v. Deakins, 44 Ky. 159 , 1844 Ky. LEXIS 98 ( Ky. 1844 ); Barret v. Coburn, 60 Ky. 510 , 1861 Ky. LEXIS 32 ( Ky. 1861 ); Swager v. Crutchfield, 72 Ky. 411 , 1872 Ky. LEXIS 69 ( Ky. 1872 ); 9 S.W. 828, 10 Ky. L. Rptr. 622 ; Moore v. Baker, 92 Ky. 518 , 18 S.W. 363, 13 Ky. L. Rptr. 724 , 1892 Ky. LEXIS 17 ( Ky. 1892 ).

Sons who were in actual possession of land under deeds reciting valuable consideration and recorded were not estopped from claiming the mineral rights conveyed to them by their father against grantee claiming under a subsequent mineral deed of general warranty executed by their father where grantee’s suit to establish mineral rights was not instituted for 31 years and lay dormant for 20 years. Federal Gas, Oil & Coal Co. v. Maynard, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

When the one in possession is estopped to deny the title of another, he is prohibited from holding adversely, and a deed by the other is not champertous. Carlisle v. Cassady, 46 S.W. 490, 20 Ky. L. Rptr. 562 (1898); Taylor v. Combs, 50 S.W. 64, 20 Ky. L. Rptr. 1828 (1899); Miller v. Farmers' Bank of Kentucky, 75 S.W. 218, 25 Ky. L. Rptr. 373 (1903); Perry v. Eagle Coal Co., 170 Ky. 824 , 186 S.W. 875, 1916 Ky. LEXIS 136 ( Ky. 1916 ); Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ); Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 (Ky. 1916); Middleton v. Commonwealth, 200 Ky. 237 , 254 S.W. 754, 1923 Ky. LEXIS 55 ( Ky. 1923 ).

When the one in possession is estopped to deny the title of another, he is prohibited from holding adversely, and a deed by the other is not champertous; nor is the deed to the other champertous. Black v. Allen, 52 S.W. 809, 21 Ky. L. Rptr. 620 , 1899 Ky. LEXIS 324 (Ky. Ct. App. 1899).

The fact that defendant, claiming title through adverse possession, did not plead plaintiff’s deed as champertous did not prevent defendant from relying upon this section as a defense. Lipps v. Marcum, 297 Ky. 225 , 179 S.W.2d 884, 1944 Ky. LEXIS 712 ( Ky. 1944 ).

20. — Subsurface Interests.

The mere possession of the surface is not in itself adverse to the subsurface owners within the meaning of this section. Combs v. Virginia Iron, Coal & Coke Co., 106 S.W. 815, 32 Ky. L. Rptr. 601 (1908); Price v. Big Sandy Co., 107 S.W. 725, 32 Ky. L. Rptr. 969 (1908); Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ); Farmer v. R. C. Tway Coal Co., 204 Ky. 356 , 264 S.W. 743, 1924 Ky. LEXIS 448 ( Ky. 1924 ); Cox v. Colossal Cavern Co., 210 Ky. 612 , 276 S.W. 540, 1925 Ky. LEXIS 738 ( Ky. 1925 ); Franklin Fluorspar Co. v. Hosick, 239 Ky. 454 , 39 S.W.2d 665, 1931 Ky. LEXIS 791 ( Ky. 1931 ); Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ); Smith v. Graf, 259 Ky. 456 , 82 S.W.2d 461, 1935 Ky. LEXIS 323 ( Ky. 1935 ); Harkins v. Keith, 267 Ky. 353 , 102 S.W.2d 5, 1936 Ky. LEXIS 764 ( Ky. 1936 ).

If the surface owner’s possession is not adverse as to third parties, then the possession of the mineral owner is not adverse. Thornbury v. Virginia Iron, Coal & Coke Co., 216 Ky. 434 , 287 S.W. 698, 1925 Ky. LEXIS 1147 ( Ky. 1925 ).

Deed which erroneously includes mineral rights does not, when unaccompanied by other acts, create a possession adverse to a subsequent vendee of the mineral rights. Harkins v. Keith, 267 Ky. 353 , 102 S.W.2d 5, 1936 Ky. LEXIS 764 ( Ky. 1936 ).

Cotenants owning minerals hold for benefit of other cotenants, and owner of surface is a trustee in possession of minerals for real owners and cannot acquire title by adverse possession. Saulsberry v. Maddix, 125 F.2d 430, 1942 U.S. App. LEXIS 4833 (6th Cir. Ky.), cert. denied, 317 U.S. 643, 63 S. Ct. 36, 87 L. Ed. 518, 1942 U.S. LEXIS 349 (U.S. 1942).

Where, at the time plaintiff’s predecessor was given a mineral deed, defendant’s predecessors were in actual possession with a deed of record, the mineral deed was void under this section. Federal Oil, Gas & Coal Co. v. Maynard, 63 F. Supp. 436, 1943 U.S. Dist. LEXIS 1643 (D. Ky. 1943 ), aff'd, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

Son failed to establish that at the time of his father’s deed of coal to claimant’s predecessor in title or at the time of subsequent conveyances, his occupation of that tract constituted adverse possession of the coal and no champertous deed was proved. McCoy v. Eastern Coal Corp., 311 Ky. 734 , 225 S.W.2d 308, 1949 Ky. LEXIS 1234 ( Ky. 1949 ).

For surface estate owners to adversely possess the mineral estate, they must continuously and uninterruptedly hold the mine or seam for the statutory period and if they should cease operating or removing the minerals, the statute stops running. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

21. — Boundary Lines.

A dispute as to the location of a boundary line created a disputed strip, possession and title to which was claimed by both parties. A conveyance by one of his interest was not champertous. (decided under prior law) Houston v. Kidwell, 1 Ky. L. Rptr. 425 (1880); Smith v. Price, 7 S.W. 918 ( Ky. 1888 ).

A dispute as to the location of a boundary line created a disputed strip, possession and title to which was claimed by both parties. A conveyance by one of his interest was not champertous. Small v. Hamlet, 68 S.W. 395, 24 Ky. L. Rptr. 238 , 1902 Ky. LEXIS 254 (Ky. Ct. App. 1902).

Where an occupant of land intends to claim to the boundary shown in his deed and is mistaken as to where the line lies on the ground and he occupies adjoining land, such occupancy is not so adverse as to make a deed to another champertous. Begley v. Shearer, 305 Ky. 122 , 203 S.W.2d 53, 1947 Ky. LEXIS 791 ( Ky. 1947 ).

A sale by defendant to plaintiff was not champertous because deed to defendant adjoining landowner was executed and recorded prior to deed of plaintiff adjoining landowner, since it did not raise inference that defendant, at the time of the sale to plaintiff, was in adverse possession of land on plaintiff’s side of true boundary line and beyond boundary line described in defendant’s deed. Baugh v. Dever, 243 S.W.2d 912, 1951 Ky. LEXIS 1181 ( Ky. 1951 ).

22. — Title Unnecessary.

The person in adverse possession need not prove or possess title if his possession is open, notorious and hostile. Blalock v. Darnell, 191 Ky. 258 , 229 S.W. 1039, 1921 Ky. LEXIS 298 ( Ky. 1921 ); Begley v. Erasmie, 205 Ky. 240 , 265 S.W. 833, 1924 Ky. LEXIS 123 ( Ky. 1924 ), writ of error dismissed, 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825, 1927 U.S. LEXIS 731 (U.S. 1927); Deupree v. Walker, 255 Ky. 30 , 72 S.W.2d 732, 1934 Ky. LEXIS 178 ( Ky. 1934 ).

Champerty arises from adverse possession and does not require a title of record. Morning Star Baptist Church v. Bryant, 306 Ky. 721 , 209 S.W.2d 86, 1948 Ky. LEXIS 643 ( Ky. 1948 ).

23. After-Acquired Title.

After-acquired title does not inure to the benefit of the grantee in a deed made when the land was held adversely to the grantor. Altemus v. Nichols, 115 Ky. 506 , 74 S.W. 221 ( Ky. 1903 ); Riggsby v. Montgomery, 208 Ky. 524 , 271 S.W. 564, 1925 Ky. LEXIS 320 ( Ky. 1925 ); Colson's Adm'r v. Johnson, 208 Ky. 684 , 271 S.W. 1033, 1925 Ky. LEXIS 365 ( Ky. 1925 ); War Fork Land Co. v. Carr, 236 Ky. 453 , 33 S.W.2d 308, 1930 Ky. LEXIS 763 ( Ky. 1930 ). But it does inure when not held adversely.

After-acquired title inures to the benefit of the grantee in a deed made when the land was not held adversely to the grantor. Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ).

24. Bankruptcy Sales.

This section does not apply to bankruptcy sales, but if the title of the one whose property was sold was champertous, the purchaser acquires no better title. Anderson v. Daugherty, 182 Ky. 800 , 207 S.W. 474, 1919 Ky. LEXIS 406 ( Ky. 1919 ).

25. Consummation of Prior Valid Contracts.

Deeds executed while land was adversely held, carrying out written or parol contracts made at a time when the land was not held, did not violate the statute. (decided under prior law) Saunders's Heirs v. Groves, 25 Ky. 406 , 1829 Ky. LEXIS 115 ( Ky. 1829 ); Norton v. Doe, 31 Ky. 14 , 1833 Ky. LEXIS 6 ( Ky. 1833 ); Hopkins v. Paxton, 34 Ky. 36 , 1836 Ky. LEXIS 10 ( Ky. 1836 ); Cardwell v. Spriggs' Heirs, 37 Ky. 36 , 1838 Ky. LEXIS 97 ( Ky. 1838 ); Chiles v. Jones, 37 Ky. 528 , 1838 Ky. LEXIS 177 ( Ky. 1838 ); Chiles v. Conley's Heirs, 39 Ky. 385 , 1840 Ky. LEXIS 38 ( Ky. 1840 ); Cardwell v. Sprigg's Heirs, 40 Ky. 369 , 1840 Ky. LEXIS 114 ( Ky. 1840 ); Simon v. Gouge, 51 Ky. 156 , 1851 Ky. LEXIS 36 ( Ky. 1851 ); Greer v. Wintersmith, 85 Ky. 516 , 4 S.W. 232, 9 Ky. L. Rptr. 96 , 1887 Ky. LEXIS 71 ( Ky. 1887 ); Thacker v. Belcher, 11 S.W. 3, 10 Ky. L. Rptr. 853 (1889).

Deeds executed while land is adversely held, carrying out written or parol contracts made at a time when the land was not so held, do not violate this section. Middlesborough Waterworks Co. v. Neal, 105 Ky. 586 , 20 Ky. L. Rptr. 1403 , 49 S.W. 428, 1899 Ky. LEXIS 244 ( Ky. 1899 ); Percifull v. Coleman, 72 S.W. 29, 24 Ky. L. Rptr. 1685 (1903); Day v. Hicks, 124 S.W. 805 ( Ky. 1910 ); Abbott v. Perkinson, 144 Ky. 495 , 139 S.W. 745, 1911 Ky. LEXIS 646 (1911); Kentucky Union Co. v. Hevner, 210 Ky. 121 , 275 S.W. 513, 1924 Ky. LEXIS 23 ( Ky. 1925 ); Bolton v. Sears, 257 Ky. 676 , 78 S.W.2d 914, 1935 Ky. LEXIS 69 (1935); Campbell v. Embry, 264 Ky. 536 , 95 S.W.2d 20, 1936 Ky. LEXIS 360 (1936). See also Wallace v. Neal, 227 Ky. 30 , 11 S.W.2d 1002, 1928 Ky. LEXIS 466 ( Ky. 1928 ), as to prior parol contracts.

A deed not recorded until after adverse entry is not champertous if valid when made. Spicer v. Terry, 218 Ky. 448 , 291 S.W. 727, 1927 Ky. LEXIS 179 ( Ky. 1927 ).

The burden of proving the prior contract is upon the one claiming under it. Wallace v. Neal, 227 Ky. 30 , 11 S.W.2d 1002, 1928 Ky. LEXIS 466 ( Ky. 1928 ).

26. Conveyances Between Rival Claimants.

Adjustments between parties having conflicting claims to the property did not violate the champerty statutes. (decided under prior law) The Jones Stationery & Printing Co. v. Jeffrey, 9 Ky. L. Rptr. 148 (1887).

A vendee in a deed executed when the lands were adversely held by another may purchase the interests of the adverse claimants and thereafter convey a good title. Ft. Jefferson Imp. Co. v. Dupoyster, 108 Ky. 792 , 51 S.W. 810, 21 Ky. L. Rptr. 515 , 1899 Ky. LEXIS 1 ( Ky. 1899 ).

27. Conveyances by Coowners.

Tenants in common may convey to a trustee for purpose of suit land held adversely by another. W. C. Belcher Land Mortg. Co. v. Hazard Coal Corp., 15 F.2d 481, 1926 U.S. App. LEXIS 2916 (6th Cir. Ky. 1926 ).

A tenant in common may sell to his cotenant his interest in land adversely held by another. Speer v. Duff, 65 S.W. 126, 23 Ky. L. Rptr. 1323 , 1901 Ky. LEXIS 354 (Ky. Ct. App. 1901); Perry v. Wilson, 183 Ky. 155 , 208 S.W. 776, 1919 Ky. LEXIS 451 ( Ky. 1919 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ); Alexander v. Duncan, 247 Ky. 422 , 57 S.W.2d 58, 1933 Ky. LEXIS 408 ( Ky. 1933 ); Moore v. Pauley, 250 Ky. 156 , 61 S.W.2d 1106, 1933 Ky. LEXIS 660 ( Ky. 1933 ); Nelson v. Gregory, 262 Ky. 740 , 91 S.W.2d 29, 1936 Ky. LEXIS 92 ( Ky. 1936 ).

28. Easements.

Possession of right of way by railroad company under easement for railroad purposes was not adverse to the owner of the fee, and a lease of oil and gas rights under the right of way was not champertous. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

29. Execution Sales.

An execution sale of property held adversely was void. (decided under prior law) Kenton F. R. Co. v. Lowder, 10 Ky. Op. 844, 1 Ky. L. Rptr. 399 , 1880 Ky. LEXIS 426 (Ky. Ct. App. Nov. 9, 1880).

An execution sale of property held adversely was void but the possession had to exist as of the time of the levy. (decided under prior law) Greer v. Wintersmith, 85 Ky. 516 , 4 S.W. 232, 9 Ky. L. Rptr. 96 , 1887 Ky. LEXIS 71 ( Ky. 1887 ).

An execution sale of property held adversely is void. Farmers' Bank of Beattyville's Assignee v. Pryse, 76 S.W. 358, 25 Ky. L. Rptr. 807 (1903).

An execution sale of property held adversely is void but the possession must exist as of the time of the levy and the possessor must assert his rights promptly. Salyers v. Sword, 251 Ky. 59 , 64 S.W.2d 182, 1933 Ky. LEXIS 798 ( Ky. 1933 ).

The champerty statute applies to execution sales when, at time of levy, the land was in possession of someone other than the execution defendant. A subsequent transfer by the execution defendant is ineffectual. Bailey v. Bailey, 286 Ky. 582 , 151 S.W.2d 374, 1941 Ky. LEXIS 298 ( Ky. 1941 ).

30. Judgment for Possession.

Champerty and maintenance law did not apply to a deed executed by a vendor who had already secured judgment against the occupants for possession of the land, although habere facias had not yet issued. (decided under prior law) Jones v. Chiles, 32 Ky. 25 , 1834 Ky. LEXIS 7 ( Ky. 1834 ); Swager v. Crutchfield, 72 Ky. 411 , 1872 Ky. LEXIS 69 ( Ky. 1872 ); 9 S.W. 828, 10 Ky. L. Rptr. 622 .

31. Judicial Sales.

Champerty law did not apply to judicial sales. (decided under prior law) Saunders's Heirs v. Groves, 25 Ky. 406 , 1829 Ky. LEXIS 115 ( Ky. 1829 ); Frizzle v. Veach, 31 Ky. 211 , 1833 Ky. LEXIS 58 ( Ky. 1833 ); Little v. Bishop, 48 Ky. 240 , 1848 Ky. LEXIS 60 ( Ky. 1848 ); Hobson v. Hendrick, 13 Ky. Op. 766, 7 Ky. L. Rptr. 362 , 1885 Ky. LEXIS 349 (Ky. Ct. App. Nov. 12, 1885); Preston v. Breckinridge, 86 Ky. 619 , 6 S.W. 641, 10 Ky. L. Rptr. 2 , 1888 Ky. LEXIS 15 ( Ky. 1888 ); Townsend v. Chenault, 17 S.W. 185, 13 Ky. L. Rptr. 319 (1891); Arnold v. Stephens, 17 S.W. 859, 13 Ky. L. Rptr. 622 (1891).

This section does not apply to judicial sales but, if the title of the one whose property is sold was champertous, the purchaser acquires no better title. Anderson v. Daugherty, 182 Ky. 800 , 207 S.W. 474, 1919 Ky. LEXIS 406 ( Ky. 1919 ).

This section does not apply to a deed made pursuant to foreclosure proceedings against a person in possession of land claiming title thereto. Woods v. Garrard, 282 Ky. 233 , 138 S.W.2d 325, 1940 Ky. LEXIS 143 ( Ky. 1940 ).

Plaintiff’s effort to avoid plea of champerty on ground that partition had been made in judicial proceeding need not be considered by Court of Appeals, where there was no proof that partition or partition deed had been made in judicial proceeding, although deed was indorsed as approved in open court, such indorsement being unnecessary, surplusage, and without legal effect. Barnes v. Tipton, 287 Ky. 365 , 153 S.W.2d 940, 1941 Ky. LEXIS 565 ( Ky. 1941 ).

The champerty statute does not apply to judicial sales. Wilder v. Lee, 304 Ky. 144 , 200 S.W.2d 153, 1947 Ky. LEXIS 603 ( Ky. 1947 ).

Where land was in actual and notorious adverse possession of appellee under color of title at time appellant’s grantor took title to land at judicial sale and, subsequently, at time of grantor’s deed to appellants, the latter conveyance was void as champertous. Combs v. Cornett, 311 Ky. 870 , 225 S.W.2d 950, 1949 Ky. LEXIS 1254 ( Ky. 1949 ).

32. Lis Pendens Conveyances.

This section does not apply to conveyances made by a bona fide claimant during pendency of suit to enforce his claim against the adverse possessor. Frasure v. Northern Coal & Coke Co., 189 Ky. 574 , 225 S.W. 479, 1920 Ky. LEXIS 477 ( Ky. 1920 ); Pond Creek Coal Co. v. Hatfield, 228 Ky. 806 , 16 S.W.2d 442, 1929 Ky. LEXIS 658 ( Ky. 1929 ); Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ).

33. Entries and Warrants.

Entries being assignable by law, such an assignment did not violate the champerty law. (decided under prior law) Oldham v. Rowan, 7 Ky. 544 , 1817 Ky. LEXIS 51 ( Ky. 1817 ).

The assignment of a warrant did not violate the champerty law. (decided under prior law) Thruston v. Masterson, 39 Ky. 228 , 1839 Ky. LEXIS 124 ( Ky. 1839 ).

34. Overlapping Descriptions.

Where plaintiff conveyed to defendant a tract of land of which plaintiff was the sole owner, and later joined with others in conveying tract in which he owned an undivided interest, he could not maintain that second deed was champertous to extent it overlapped description in first deed, as a defense to counterclaim by defendant seeking to recover for deficiency in acreage in first deed, notwithstanding that deficiency was caused by overlapping and that defendant had knowledge of that fact at time of second deed. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

35. Redemption Rights.

The sale of a right to redeem land sold under an absolute deed was champertous. (decided under prior law) Puyer v. Wood, 1 Ky. L. Rptr. 419 (1880).

36. Reconveyance.

A reconveyance for the purpose of rescinding a champertous deed is valid even though the land is adversely held. Holliday v. Tennis Coal Co., 215 Ky. 551 , 286 S.W. 773, 1926 Ky. LEXIS 758 ( Ky. 1926 ); Arrington v. Sizemore, 241 Ky. 171 , 43 S.W.2d 699, 1931 Ky. LEXIS 58 ( Ky. 1931 ).

37. Remedies of Parties.

A champertous sale could be rescinded even though both parties knew of the adverse holding, and even though the adverse holder was removed before hearing. (decided under prior law) Williams v. Carter, 33 Ky. 198 , 1835 Ky. LEXIS 71 ( Ky. 1835 ).

Even when the vendee had gone into possession, the vendor could recover possession. (decided under prior law) Cardwell v. Spriggs' Heirs, 37 Ky. 36 , 1838 Ky. LEXIS 97 ( Ky. 1838 ).

The void conveyance did not forfeit grantor’s title and he could in good faith sue thereon for his own benefit. (decided under prior law) Cardwell v. Spriggs' Heirs, 37 Ky. 36 , 1838 Ky. LEXIS 97 ( Ky. 1838 ); Swager v. Crutchfield, 72 Ky. 411 , 1872 Ky. LEXIS 69 ( Ky. 1872 ).

The heirs of a champertor occupied no better position than their ancestor. (decided under prior law) Bryant's Heirs v. Hill, 39 Ky. 67 , 1839 Ky. LEXIS 83 ( Ky. 1839 ).

A bill or note given to secure payment for land sold while in the adverse possession of another was uncollectible. (decided under prior law) Breckinridge v. Moore, 42 Ky. 629 , 1843 Ky. LEXIS 81 ( Ky. 1843 ).

A champertous contract could not be confirmed. (decided under prior law) Thompson v. Warren, 47 Ky. 488 , 1848 Ky. LEXIS 118 ( Ky. 1848 ).

The courts would not enforce a champertous contract when executory, nor grant relief when executed. (decided under prior law) Thompson v. Warren, 47 Ky. 488 , 1848 Ky. LEXIS 118 ( Ky. 1848 ).

A champertous contract could be rescinded or abandoned in good faith by the parties prior to suit by the vendor against the adverse possessor, but when it was rescinded until after suit was filed, the rescission did not relate back to the beginning of the action, and the vendor could have no recovery against the one in possession. (decided under prior law) Harman v. Brewster, 70 Ky. 355 , 1870 Ky. LEXIS 71 ( Ky. 1870 ); Hobson v. Hendrick, 13 Ky. Op. 766, 7 Ky. L. Rptr. 362 , 1885 Ky. LEXIS 349 (Ky. Ct. App. Nov. 12, 1885); Luen v. Wilson, 85 Ky. 503 , 3 S.W. 911, 9 Ky. L. Rptr. 83 , 1887 Ky. LEXIS 67 ( Ky. 1887 ). See also Crowley v. Vaughan, 74 Ky. 517 , 1875 Ky. LEXIS 43 ( Ky. 1875 )(to the effect that the parties could rescind at any time).

A champertous contract may be rescinded or abandoned in good faith by the parties prior to suit by the vendor against the adverse possessor, but when it is not rescinded until after suit is filed, the rescission does not relate back to the beginning of the action and the vendor can have no recovery against the one in possession. Moore v. Baker, 92 Ky. 518 , 18 S.W. 363, 13 Ky. L. Rptr. 724 , 1892 Ky. LEXIS 17 ( Ky. 1892 ); Scott v. Wolford, 150 Ky. 64 , 149 S.W. 1140, 1912 Ky. LEXIS 832 ( Ky. 1912 ); Doyle v. Cornett, 187 Ky. 584 , 219 S.W. 1059, 1920 Ky. LEXIS 17 0 ( Ky. 1920 ); Begley v. Erasmie, 205 Ky. 240 , 265 S.W. 833, 1924 Ky. LEXIS 123 ( Ky. 1924 ), writ of error dismissed, 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825, 1927 U.S. LEXIS 731 (U.S. 1927); Holliday v. Tennis Coal Co., 215 Ky. 551 , 286 S.W. 773, 1926 Ky. LEXIS 758 ( Ky. 1926 ); Asher v. Pioneer Coal Co., 233 Ky. 661 , 26 S.W.2d 543, 1930 Ky. LEXIS 632 ( Ky. 1930 ).

Champertous contracts are unenforceable either at law or in equity. Roberts v. Yancey, 94 Ky. 243 , 21 S.W. 1047, 15 Ky. L. Rptr. 10 , 1893 Ky. LEXIS 32 ( Ky. 1893 ).

Champertous conveyances are voidable at the instance of the parties in adverse possession. Ft. Jefferson Imp. Co. v. Dupoyster, 108 Ky. 792 , 51 S.W. 810, 21 Ky. L. Rptr. 515 , 1899 Ky. LEXIS 1 ( Ky. 1899 ). See Meade v. Ratliff, 133 Ky. 411 , 118 S.W. 271, 1909 Ky. LEXIS 1 83 ( Ky. 1909 ); Doyle v. Cornett, 187 Ky. 584 , 219 S.W. 1059, 1920 Ky. LEXIS 170 ( Ky. 1920 ).

The vendee in a champertous deed has no remedy on the warranty. Altemus v. Nichols, 115 Ky. 506 , 74 S.W. 221 ( Ky. 1903 ); Edgemont Coal Co. v. Asher, 298 F. 1000, 1919 U.S. Dist. LEXIS 989 (D. Ky. 1919 ); Colson's Adm'r v. Johnson, 208 Ky. 684