Opinion
June 6, 1952.
Appeal from the Circuit Court, Casey County, James C. Carter, Jr., J.
L.C. Lawrence, Jamestown, for appellants.
Stanley Lemon, Liberty, for appellee.
The appellants, Irene Pennington McAninch and her husband, M.M. McAninch, contend that a deed executed by her to appellee in March, 1947, for 1.2 acres of land should be set aside because of the fraud of appellee and failure of consideration. The trial court dismissed the petition.
The evidence is conflicting and cannot be said to preponderate in favor of either party. Nothing would be gained by discussing it in detail. Mrs. McAninch says that by reason of misrepresentations of the appellee, who stepped off the boundary lines, the description in the deed covers more land than she intended to convey. She also testified that the consideration of $150 has not been paid, although its receipt is acknowledged in the deed. The appellee denied the charge of fraud and swore the consideration was paid to Mrs. McAninch in cash. Each party is supported to some extent by other witnesses and by the admitted facts.
The appellants had the burden of proof. Goerter v. Shapiro, 254 Ky. 701, 72 S.W.2d 44; Cornett v. Davidson, 282 Ky. 584, 139 S.W.2d 72; Curtis-Jordan Oil Gas Co. v. Mullins, 269 Ky. 514, 106 S.W.2d 979; Spencer v. Hogg's Adm'r, 248 Ky. 229, 58 S.W.2d 401. We agree with the trial judge that they failed to sustain the burden.
The judgment is affirmed.