Alexander v. De Kermel

• Citation: 5 Ky.L.Rptr. 382,5 Ky.L.Rptr. 430,81 Ky. 345,5 Ky.L.Rptr. 420,5 Ky.L.Rptr. 429
• Parties: Alexander, & c., v. de Kermel, & c.
• Decision Date: 15 November 1883
• Court: Court of Appeals of Kentucky

81 Ky. 345

5 Ky.L.Rptr. 420, 5 Ky.L.Rptr. 429, 5 Ky.L.Rptr. 430, 5 Ky.L.Rptr. 382

Alexander, & c., v. de Kermel, & c.

Court of Appeals of Kentucky.

November 15, 1883

1. The common law doctrine of reversions prevails in Kentucky.

2. A conveyance to one for life, and then to the grantor's heirs, creates a reversion in the grantor, and, upon the death of the life-tenant, the grantor may devise the estate as he pleases.

3. There must be a delivery and an actual acceptance or assent before a deed becomes binding between the parties or valid as a deed. The mere execution of a deed, and its delivery to the county clerk, is not sufficient, unless directed by the grantee or afterwards assented. to by him.

4. The acknowledgment of a deed is a fact which may be proved to show delivery, but standing alone, it does not establish a presumption of delivery.

5. Where the rights of third persons have attached, they cannot be destroyed by the subsequent acceptance and recording of a deed previously executed.

6. A mere order sustaining a demurrer not followed by a judgment dismissing the pleading, or that part of it demurred to, is not final, and may be disregarded by the court in rendering final judgment.

APPEAL fro LOUISVILLE CHANCERY COURT.

BULLITT & HARRIS FOR APPELLANTS.

1. The judgment of the chancellor sustaining the demurrer to the first paragraph of the petition was a final order, which might have been appealed from, and, after the expiration of sixty days, was beyond the control even of the court which rendered it. The vice chancellor had no power to vacate or modify it, even within sixty days. (Civil Code, secs. 772 and 777; Young v. Peters, 4 Bush, 403; Dudley v Kentucky High School, 9 Bush, 576; Freeman on Judgments sec. 267.)

2. The common law rule that where one grants an estate to another for life, with remainder to the grantor's own heirs, the remainder is void, has no application in Kentucky. It was founded upon the same considerations of feudal policy as the rule in Shelley's case, and the court having rejected one of these twin rules, will not now adopt the other. (2 Blackst. Com., 242; 2 Thomas Coke, side page 141; Ib., 142; Ib., Appendix, note 4, p. 536; Turman v. White, 14 B. M., 450; Williamson v Williamson, 18 B. M., 369.)

3. The acknowledgment of a deed is prima facie evidence of previous delivery. (McConnell v. Brown, Litt. Select Cases, 468; Ford v. Gregory, 10 B. M., 180.)

BROWN &amp DAVIE FOR APPELLEES.

1. The deed of 1856 created a reversion in the grantor, not a mere remainder to his heirs. (4 Kent, 353, 354; Cruise's Digest, title xvii, sec. 4; Ib., secs. 10, 11, aliter, secs. 12, 13; Coke on Littleton, chap. 2, sec. 19, book 1, title Fee Tail; Washburn on Real Property, vol. 2, p. 388; Ib., 395.)

2. The decisions in Kentucky, and the statutes based upon them, which refuse a recognition of the rule in Shelley's case, apply to remainders alone, and do not concern or touch the common law doctrine of reversions, which is still recognized in Kentucky. (Turman v. White, 14 B. M., 450; Prescott v. Prescott, 10 B. M., 56; Gen. Stat., ch. 63, art. 1, secs. 10, 11, and 25.)

3. The theory of reversions is absolutely necessary to uphold any doctrine of remainders whatever. (Washburn on Real Property, vol. 2, p. 540.)

4. All the circumstances connected with the execution of the deed of 1864 stamp it as a voluntary family trust, under which the father took the title, to be restored to his son when the war cloud had blown over. (58 Ill. 310.)

5. There is no proof that the grantee in the deed of 1864 ever accepted it. (58 Ill. 310.)

6. An order merely sustaining a demurrer to a petition not followed by a judgment in bar or dismissal, is not final, and the court is not precluded from disregarding such an order when it come to render final judgment. (Offutt's ex'r v. Bradford, 4 Bush, 414; Birch v. Funk 2 Met., 544; Gilman v. Rivers, 10 Peters, 302; Clearwater v. Meredith, 1 Wall., 43; Aurora v. West, 7 Wall., 99; Goodrich v. The City, 5 Wall.; Freeman on Judgments, sec. 30; Newport v. Covington Bridge Co. v. Douglass, 12 Bush, 676; Civil Code, sec. 134.)

OPINION

HARGIS CHIEF JUSTICE:

This was an action by appellees for the construction of a deed of trust made by Thomas Bullitt Alexander in 1856, and of his will made in 1878, while in the Republic of France, at the appellees' home, whither he had gone some time after the American civil war, and where he virtually enjoyed their hospitality and kindly offices for several years preceding his death.

By the deed of 1856 he conveyed a lot and warehouse thereon to Wilson in trust for his own use during life, and to his issue, if any, in fee; if none, then in equal parts to two half brothers, or the survivor, or to the issue of either, and " if both of them should die before the party of the first part without issue, said property shall go to the heirs of the said party of the first part."

The half brothers died without issue before Thomas Bullitt Alexander, who, after their death, himself having no issue, devised by his will the house and lot to the appellee, Mrs. de Kermel.

The petition of herself and husband was not paragraphed until after appellants made a motion to compel them to paragraph it, which they did without objection. Thereupon, the appellants, claiming the house and lot as heirs and devisees of Col. T. L. Alexander, who was the father of Thomas Bullitt Alexander, and survived him, demurred to the first paragraph of the petition, which was sustained, but no judgment was rendered effectuating the demurrer, either by dismissing the first paragraph or otherwise. In this condition, the case was transferred to the vice chancellor's court, and there, upon the hearing on the merits, the appellees recovered judgment, declaring the title to be in Mrs. de Kermel, and removing the cloud therefrom. From that judgment this appeal was taken. The first question is, whether the order sustaining the demurrer was final and conclusive unless reversed, the appellees having failed to appeal from that order.

As there was no judgment following it, the mere order sustaining the demurrer was not final and appealable. It is well settled that even a judgment on demurrer, unless the complaint is sufficient, is no bar to a future action. Section 267 of Freeman on Judgments has no application where the demurrer is not followed by a judgment, or an order equivalent to a judgment. Although a demurrer may be sustained, the case may be kept in court for the purpose of amendment or reconsideration before judgment of dismission, and the court may finally determine not to dismiss the pleading on either of those grounds. Hence, the order sustaining the demurrer to the first paragraph of the petition is not final or preclusive, and the subsequent judgment of the court must be treated also as an order correcting the error in sustaining the demurrer, which the court had the right to make, as no former judgment had been rendered on the demurrer. In the first paragraph of the petition the appellees set forth the deed of 1856 and the will, and in the second they averred, substantially, that if they were mistaken as to the proper construction of those instruments, then they were entitled to the property because of an agreement and declaration of trust on the part of the father of Thomas Bullitt Alexander to hold it for his use.

The appellants answered, controverting the material allegations of the petition as to the construction of the deed and will, and, in avoidance, pleaded a conveyance of the house and lot in May, 1864, by Thomas Bullitt Alexander to his father in consideration of $9,000, all of which is stated to have been paid in different amounts from the year 1854 to the date of the deed, except $1,000 paid at the latter date. The appellees, in effect, replied, that this deed was never delivered to or accepted by his father, and if it had been, it was in trust for Thomas Bullitt Alexander's use and benefit.

Thus, it will be seen, that the correctness of the judgment below depends upon the legal effect of the deed of 1856, and on the fact whether the deed of 1864 was delivered, and, if so, whether a maintainable resulting trust grew out of the circumstances of its execution.

We will first consider the deed of 1856. The real question under it is, whether the term " heirs," embraced in the words " said property shall go to the heirs of the said party of the first part," imports purchasers. It is undoubtedly the law that Thomas Bullitt Alexander had the right to designate his heirs as purchasers under the deed, but whether he intended to do so depends upon the terms which he employed. We must assume, in the absence of words in the deed expressing a contrary intention, that the language quoted from it was used in its legal sense, and subject to legal interpretation.

According to the elementary books, the language under consideration made such a disposition of the reversion in the property, which was not absolutely conveyed by Thomas Bullitt Alexander, as the law would have made had not the reversion been provided for or nothing been said about it.

According to Coke, " a reversion is where the residue of the estate always doth continue in him that made the particular estate, or where the particular estate is derived out of his estate; " and, in illustration of reversions he says: " If a man seized of lands in fee make a feoffment in fee (and depart with his whole estate), and limit the use to his daughter for life, and after her decease to the use of his son in tail, and after to the use of the right heirs of the feoffor; in this case, albeit he departed with the whole fee-simple by the feoffment, and limited no use to himself, yet hath he a reversion." And he...