Alley v. Alley

• Decision Date: 27 February 1906
• Parties: ALLEY et al. v. ALLEY et al.
• Court: Kentucky Court of Appeals

91 S.W. 291

ALLEY et al. v. ALLEY et al.

Court of Appeals of Kentucky.

February 27, 1906

Appeal from Circuit Court, Rowan County.

"Not to be officially reported."

Suit by B. F. Alley and others against Nancy E. Alley and others. From a decree in favor of complainants, defendants appeal. Affirmed.

J. A Scott, W. C. Marshall, J. W. Riley, and E. Hogg, for appellants.

Will A Young and Wm. H. Holt, for appellees.

BARKER J.

In 1866 John W. Hazelrigg conveyed to his daughter, Nancy E. Alley one of the appellants, a tract of land near Morehead, in Rowan county, Ky. said to contain some 300 acres. The appellees, who are her children and only heirs at law, claim that by the terms of this deed the property was conveyed to their mother for life, with remainder to her children. This deed, in whatever manner it was drawn, was duly and legally lodged and recorded in the office of the county clerk of Rowan county. In 1880 the courthouse of Rowan county was burned, and all of its records, including the deed in question, destroyed. No copy of the instrument is known to exist. In 1882 the General Assembly of the commonwealth of Kentucky enacted a special statute authorizing the judge of the Rowan county court to appoint a commissioner to hear proof and supply the burned records. 2 Acts 1881-82, p. 143 c. 821. Z. T. Young was appointed commissioner for this purpose, and in 1884 he undertook to supply the deed involved herein. In a report made by him to the county judge he says that, after giving due notice by publication, he proceeded with the business of establishing the burned deed by which John W. Hazelrigg conveyed the land involved in this controversy. This was done substantially as follows: Cyrus Alley, the husband of Nancy E. Alley and the father of the infant appellees, with his own hand drew up a deed which he said contained substantially his remembrance of the Hazelrigg deed. This he presented to the commissioner, and made formal testimony before that officer that the instrument he had drawn substantially contained the provisions of the lost deed. His wife also said about the same thing. James W Johnson, who was the clerk of the Rowan county court from August, 1870, to August, 1882, testified that he examined the records of the deed in question recorded in his office, and to the best of his recollection the description of the deed contained in Cyrus Alley's deposition in the matter of the substitution is the same as the one he examined in his office. Whereupon the commissioner adopted the deed drawn by Cyrus Alley as substantially a reproduction of the burned instrument. His report to this effect seems to have been filed in the county clerk's office, but was never, so far as the record shows, confirmed by the county court, or the substitute deed ordered to record. Subsequently Cyrus Alley and his wife sold the property, undertaking to convey a fee-simple title thereto, and this has come by regular devolution of title to the possession of the appellants, Andrew J. Gauze, Stella Gauze, Martha Gauze, and Cora Gauze, who claim to own the property in fee simple. The appellants, who claim to be remaindermen under the deed of their grandfather, instituted this action in the Rowan circuit court, setting up the foregoing facts, alleging that by the original deed from John W. Hazelrigg to their mother, Nancy E. Alley, the land was conveyed to her only for life, with remainder to them. They alleged the recording of the deed, the burning of the courthouse, the proceeding by which the substitute deed was attempted to be made, the subsequent sales by which the property came into the hands of Andrew J. Gauze and his wife and children, and that these latter claim to own the estate in fee simple, thereby casting a cloud upon appellees' title to the remainder interest after the death of their mother, and praying for an adjudication of their rights and a removal of the cloud from their title to the remainder. The answers deny the material facts...