Hall, &C. v. Wright, &C.
| Decision Date | 12 October 1909 |
| Citation | 137 Ky. 39 |
| Parties | Hall, &c. v. Wright, &c. |
| Court | Kentucky Court of Appeals |
Appeal from Letcher Circuit Court.
Judgment for defendants and plaintiffs appeal. — Reversed.
McQUOWN & BECKHAM, G. W. FLEENOR, GOURLEY, REDWINE & GOURLEY and J. H. HAZELRIGG for appellants.
HAGER & STEWART, D. D. FIELDS and DISHMAN & DISHMAN for appellees.
In 1882 Eli Hall conveyed by deed to his son, Joseph Hall, a tract of land in Letcher county, Ky., containing in round numbers 2,000 acres. In this deed the wife of the vendor did not join. In 1885 Eli Hall and his wife conveyed to Joseph Hall and his children in round numbers 1,500 acres of the same land that was embraced in the deed of 1882; it being claimed by appellants that the last deed was a substitute for the first, and made to carry into effect a contract by which the first was rescinded. In 1893 Joseph Hall purchased from the Aultman & Taylor Machinery Company a steam saw and grist mill for the sum of $1,671, giving two notes therefor — one for $400, due September 1, 1893, and the other for $1,271, due September 1, 1894. To secure the payment of these two notes, Joseph Hall and his wife, Nancy, executed a mortgage on the mill which he had purchased from the Aultman & Taylor Company and on the land embraced in the deed from his father, executed and delivered in 1885. Afterwards Joseph Hall made default in the payment of the first note, and the Aultman & Taylor Machinery Company instituted an action in the Letcher Circuit Court, wherein it obtained a judgment by default and enforced its lien on the mill outfit, which it had theretofore sold him, and at the judicial sale had it purchased the mill outfit for the amount of the first note, with interest and costs added, aggregating $430. Afterwards in the same action the company enforced its mortgage lien for the second note, and on December 3, 1894, obtained a judgment for the sale of the entire fee in the tract of land mortgaged, and at the judicial sale had thereafter it purchased the land for the amount of the second note, with interest and costs. This sale was afterwards confirmed by the court, a deed made to the purchaser, a writ of possession issued in its favor against Hall and wife, and under this process it was placed in possession of the land involved in this case. Hall and his family removed to Breathitt county, Ky., where they continued to reside until his death in the year 1902.
On October 17, 1900, the children of Joseph Hall, who are the appellants in this action, instituted an action in the Letcher Circuit Court against their father, in which they claimed that under the deed of 1885, made by their grandfather, Eli Hall, to their father, the latter took only a life estate in the land conveyed, and that his children, after his death, became the owners of the remainder in fee simple; that, when the deed was recorded by the clerk of the Letcher County Court, by fraud or mistake the words "and his children," following the name of Joseph Hall in the caption, which were in the original deed, were omitted; and they prayed that the deed as recorded be corrected, so as to show the facts in regard thereto. Although the Aultman & Taylor Machinery Company had long before enforced its mortgage lien upon this land against their father, Joseph Hall, and his wife, Nancy, and had purchased it at judicial sale and been put in possession of it by the court, it was not made a party to this action. A judgment by default was rendered in accordance with the prayer of the petition. Of course, no interest or right of the company was prejudiced by any proceedings had in this case. The attorneys for the children, Morgan and Wootton, were allowed a fee of $500 in the action, which was adjudged to be a lien upon the land.
On July 29, 1901, the Aultman & Taylor Machinery Company filed an action in the Letcher circuit court against the children of Joseph Hall and against Morgan & Wootton, their attorneys, in which it was alleged that the claim of Morgan & Wootton to a lien upon the land to secure their fee of $500, and the claim of the children of Joseph Hall to be tenants in remainder after the death of their father, cast a cloud upon its title to the land, and it prayed for a judgment quieting its title as against the defendants. Several of the children of Joseph Hall were infants, and one was absent from the United States doing duty as a soldier in the Philippine Islands; but Eli Hall, the eldest, undertook to manage their common defense in this action, brought suit as before said, to have their claim to be tenants in remainder after the death of their father adjudged to be without legal foundation. He employed counsel to represent him and his brothers and sisters in the action, and through them filed an answer claiming to be tenants in remainder after the death of their father. We do not deem it necessary to set out with particularity the issues that were made in this case, except to say that after they were completed Eli Hall and the plaintiff in the litigation compromised the case — it being agreed that a judgment should be allowed to go in favor of the Aultman & Taylor Machinery Company, granting the prayer of its petition; that the Aultman & Taylor Machinery Company should then sell the property to appellant John W. Wright for $4 an acre; that with this money Wright should pay the debt of the Aultman & Taylor Machinery Company, with interest and costs, amounting to $2,650, and that out of the remainder, amounting to $2,361.60, $500 was to be paid to Morgan & Wootton for their services in the litigation between the children and the father to correct the mistake in the recording of the deed, and the residuum paid over to Eli Hall for himself and his brothers and sisters. This was done.
Afterwards, in July, 1904, Joseph Hall, the father, being dead, the appellants, his children, instituted this action in the Letcher circuit court against the Aultman & Taylor Machinery Company and John W. Wright, claiming to be the owners in fee simple of the property involved herein and that they were rightfully entitled to the possession thereof, which was being wrongfully withheld from them, and also setting up the action of the Aultman & Taylor Machinery Company against them heretofore set forth, and alleging that the agreed judgment entered therein was a fraud upon their rights, and was done without their knowledge or consent, and praying that the judgment be set aside and held for naught, and that they be adjudged to be the owners and entitled to possession of the land in question. As an exhibit with their petition they filed the deed from Eli Hall and wife to Joseph Hall and his children. To this petition a general demurrer was filed, and the circuit court, being of opinion that the deed showed on its face that the fee-simple title of the property described therein was conveyed to Joseph Hall, and that his children took no interest thereunder, sustained the demurrer; and, the appellants (plaintiffs) declining to plead further, the petition was dismissed, and an appeal prosecuted to this court, where the judgment of the circuit court was reversed, we holding (Hall v. Wright, 121 Ky. 16, 87 S. W. 1129, 27 Ky. Law Rep. 1185) that under the deed in question Joseph Hall took a life estate, with remainder to his children in fee simple.
After the case returned to the circuit court an answer was filed, which, among other things, claimed that the copy of the deed from Eli Hall and Polly Hall, his wife, to Joseph Hall and his children, was not a true copy of the deed as recorded in the county clerk's office; that in the deed as recorded the words "and his children," following the words "Joseph Hall" in the caption of the deed filed by the plaintiff, do not appear, and it is claimed that under the deed as recorded Joseph Hall took the fee simple title to the land. The defendants (appellees) also claimed that under the deed of 1882 Joseph Hall took the fee-simple title, even if not under the deed of 1885. By reply the plaintiffs alleged that the deed of 1882 had been rescinded by agreement between the father...
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