Gill, &C. v. Fugate, &C.

• Decision Date: 12 January 1904
• Citation: 117 Ky. 257
• Parties: Gill, &c. v. Fugate, &c.
• Court: Kentucky Court of Appeals

Page 257

117 Ky. 257

Gill, &c. v. Fugate, &c.

Court of Appeals of Kentucky.

January 12, 1904.

APPEAL FROM LOGAN CIRCUIT COURT.

JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. REVERSED.

W. P. SANDIDGE, FOR APPELLANTS. BROWDER & BROWDER, FOR APPELLEES.

OPINION OF THE COURT BY JUDGE O'REAR — REVERSING.

S. H. Gill owned a farm of about 236 4-5 acres of land in Logan county at his death. He died intestate. There survived his widow and three children, viz., Seth W. Gill, Mary B. Young, and Dovie Wilson, who were his only heirs at law. The land was partitioned among them by mutual conveyances as follows: The widow was allotted 76 acres as dower. To the son, Seth W. Gill, was allotted 40 1-2 acres; to Mary B. Young 57 1-2 acres, and to Dovie Wilson three tracts — one of 44 acres, another of 11 acres, and the other, 7 4-5 acres.

The subjoined plat shows the situation, and will enable the other facts of the case to be more easily understood:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Dovie had married H. S. Wilson, who had been an attorney at law. In 1888 Seth W. Gill conveyed to H. S. Wilson, by deed, his 40 1-2 acres, and his undivided one-third in the dower tract, subject to the widow's life. Mrs. Young at the same time conveyed to H. S. Wilson her 57 1-2 acres and her one-third of the dower tract. Part of the purchase money was unpaid, and liens were retained in each of the deeds. Thereafter the widow died; and in a short while after her death, Mrs. Dovie Wilson died intestate, without having had a child born alive. In consequence Seth. W. Gill and Mary B. Young, as heirs at law, inherited the three tracts allotted to Dovie Wilson (the 44 acres, 11 acres, and 7 4-5 acres), as well as her one-third of the dower tract. At the instance of H. S. Wilson, Mrs. Young and her husband and Seth W. Gill went to his house some time after the the death of his wife, where he proposed to buy from them their interest in the dower tract, as they now claim. The negotiation resulted in a sale of the interest mentioned for $800, represented by two notes of $400 each, executed to the vendors, respectively, by H. S. Wilson. The deed executed in pursuance to that sale is dated in 1898. This is the transaction principally involved in this suit. As stated, the vendors claim and testify that they intended to sell only the one-third of the dower inherited from their deceased sister; that no proposition was made to them to sell any other land; nor did they know that they had the title to the other lands formerly allotted to Mrs. Dovie Wilson. It may be here remarked that these two persons seem to have been simple people, and very ignorant of their legal rights, as well as without much knowledge or intelligence concerning such transactions. H. S. Wilson prepared the deed, which they say Seth W. Gill read aloud in the presence of the others.

The grantors some days later carried the deed to a deputy county court clerk living in the neighborhood, and without re-reading it, signed and acknowledged it. The deputy clerk indorsed the acknowledgments on the deed, and it was delivered to H. S. Wilson. Seth W. Gill and Mrs. Young each testify that the deed only recited a sale of their one-third interest in the dower tract. The deputy clerk, who knew the land and the parties, testified that he remembered the transaction, and that the deed mentioned only the dower interest. The original deed is not produced, but the certified copy from the record of deeds in the county clerk's office shows that a tract of land by metes and bounds was conveyed, including every foot of the 236 4-5 acres except the 11 acres. It is charged in this suit by appellants, Seth W. Gill and Mary B. Young, that the deed as recorded was procured by the fraud of H. S. Wilson.

A year or so after the last named deed was executed H. S. Wilson conveyed all the land mentioned to his father, S. A. Wilson, then and now a resident of the State of Tennessee. The recited consideration for the conveyance (which included all the personal property on the farm) was $5,500, evidenced by four notes executed by S. A. Wilson to H. S. Wilson for $1,375 each, payable in one, two, three and four years, respectively. These notes H. S. Wilson assigned to certain of his creditors to secure antecedent debts, and borrowed also about $900 additional on them, and procured the release of about $1,500 of collateral from one of his creditors, the People's Bank of Adairville. He then became a bankrupt, and has left the State. Seth W. Gill sent his notes to an attorney at Russellville to bring suit enforcing a lien in his favor on the land he had sold to H. S. Wilson. Mrs. Young sent her notes to an attorney at the same place for like purpose. The attorneys, not knowing what lands had been conveyed, and being referred by their clients to the county court records for proper descriptions, and the clients being ignorant of the fact that the deeds contained any reference to any but the lands actually sold, having no reason to suspect otherwise, the suits were brought in their names by their attorneys to enforce their liens on all the lands referred to in their deeds. The People's Bank of Adairville, as holder of three of the $1,375 notes executed by S. A. Wilson to H. S. Wilson and by him assigned to the bank and C. E. Haddox, the assignee of the other $1,375 note, were made parties to the proceedings, and set up their notes and liens. A judgment was rendered, by consent of all the lienholders, through their attorneys, enforcing the liens on all the land comprising the 236 3-4 acres, including the 11 acres, which no one claimed had been conveyed at all since Mrs. Dovie Wilson's death. At the sale made under this decree appellee M. L. Fugate, who was cashier of the People's Bank of Adairville, became the purchaser of the whole tract for $2,750. It was appraised at $5,328.

This suit was brought by appellants, Seth W. Gill and Mary B. Young, to obtain a new trial of the action last mentioned. In addition to the facts above stated, it is alleged that the judgment was rendered decreeing a sale of their lands, viz., the 44 acres, 11 acres, and 7 4-5 acres inherited from their sister, to satisfy debts of S. A. Wilson and H. S. Wilson, and by casualty and misfortune they were prevented from appearing and showing that fact in the original suits. The learned judge who tried this case has advised us by an opinion filed in the court below of his conclusions of law as well as the finding of the facts upon which he based his judgment refusing the new trial.

It is contended for appellees here that the transaction between H. S. Wilson and appellants shown by the deed of 1898 was not fraudulent. No witness testified upon that branch of the case save appellants and the deputy clerk who took their acknowledgments. An ingenious argument is made by appellees' counsel in support of his theory. But the facts will not be reconciled with it. The trial judge was moved to remark: "I am convinced from the proof in this case that S. W. Gill and Mrs. Young were the innocent victims in the hands of an unscrupulous scoundrel, who would not have hesitated to rob them of their patrimony in their ancestor's estate, and did to a very great extent do so. . . . In his last deal with them he procures a conveyance from them investing him with the entire interest derived by his said wife from her father's estate practically for a nominal consideration. I do not think in my practice I am cognizant of a case which so strongly appealed for the...