Arrington v. Sizemore

• Decision Date: 20 November 1931
• Citation: Arrington v. Sizemore, 241 Ky. 171, 43 S.W.2d 699 (Ky. 1931)
• Parties: Arrington et al. v. Sizemore et al.
• Court: Supreme Court of Kentucky

Page 171

241 Ky. 171

Arrington et al. v.Sizemore et al.

Court of Appeals of Kentucky.

Decided November 20, 1931.

1. Witnesses. — Competency of witness testifying as to transactions with deceased was not waived by subsequent deposition by one of deceased's heirs (Civil Code of Practice, sec. 606).

2. Witnesses. — Mere fact that deposition was given by heir of deceased without filing thereof did not make witness competent to testify respecting transactions with deceased (Civil Code of Practice, sec. 606).

3. Witnesses. — Adverse party, when person interested in estate testifies for it, becomes competent witness solely on subjects and about those things concerning which deposition was given (Civil Code of Practice, sec. 606).

4. Depositions. — Objections made before officer taking depositions are unavailing.

5. Wills. — Provision of will respecting disposition of residue and referring to all of estate held not express acknowledgment that testator owned no other property.

Provision of will respecting disposition of residue provided for gift to niece of one half of all residue and remaining half to brothers and sister with the statement, "That is all of my estate other than that disposed of in items one, two and three is to be divided in two equal parts," one to be given to niece and other to brothers and sister.

6.Lost Instruments.— Evidence of execution of lost deed and of contents thereof and its delivery must be clear and convincing.

7.Lost instruments.— Evidence respecting execution and delivery of alleged lost deed held insufficient to warrant recovery of lands involved.

8.Champerty and Maintenance.— Champerty does not have to be pleaded.

9.Champerty and Maintenance.— Deed reconveying property to grantors who had theretofore conveyed property by void deed held not champertous.

10.Attorney and Client.— Authority of attorney to maintain suit involving title to land was waived by appearance and entering into stipualtion relating to preparation and practice of case.

11. Action.— Issues in suit to enjoin trespass on land and cutting timber therefrom with counterclaim asserting title were equitable.

12.Lost Instruments.— Action at law cannot be maintained on a lost deed.

13. Trial.— Finding of trial court in case presenting only equitable issue constitutes finding of chancellor, even though case was formally transferred to ordinary docket.

14.Appeal and Error.— Appellate court in equity case enters such judgment as record justifies.

15.Appeal and Error.— Presumption prevails on every appeal that action of trial court was correct.

Appeal from Leslie Circuit Court.

M.C. BEGLEY and CLEON K. CALVERT for appellants.

A.H. PATTON and J.M. MUNCY for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

On November 17, 1928, Kate W. Arrington et al. (the heirs and devisees of Samuel L. Arrington, late of Rocky Mount, N.C.) sued Alice Erasmie Sizemore and Albert Sizemore for the possession of two tracts of land in Leslie county, aggregating about 45 acres, which we shall refer to as the McDaniel farm.

On December 1, 1928, the same plaintiffs filed a suit in equity against these same defendants, in which they sought an injunction to prevent the defendants from cutting and removing timber from this land.

On August 30, 1930, the parties filed a stipulation pursuant to which the first-named case was transferred to equity and consolidated with the second, and in this stipulation it was further provided:

"That the entire record in the case of Alice Erasmie v. W.G. Begley, lately pending in this court and in the Court of Appeals of Kentucky, may be and it is now made a part of the record in these consolidated causes and the parties may use such of these records as they desire to use on the trial of this case.The evidence therein so used shall be subject to the same exceptions filed by the parties thereto, and in the event of an appeal all rulings of the court thereon shall be subject to the objections and the exceptions saved on such rulings.The parties may file any additional exceptions they desire to file to said evidence or any portions of same."

This is in a sense a second appeal of this Begley case mentioned in this stipulation, and reference is now made to Begley v. Erasmie, 205 Ky. 240, 265 S.W. 833;Id., 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825.The defendants were successful, and Kate W. Arrington et al. have appealed.

We shall hereafter refer to Samuel L. Arrington simply as Arrington and to the plaintiffs as Arrington's heirs.The first-named defendant is referred to in this record as Alice Mattingly(her maiden name), as Alice Bowling(one of her husbands was named Bowling), as Alice Erasmie, and as Alice Sizemore, and her given name underwent a change also and Alice became Aleene; but to avoid confusion we shall refer to her as the defendant Alice.In stating the facts we shall first state those asserted and relied on by Arrington's heirs and later the claims of the defendant Alice.

In 1912 Arrington was living in Rocky Mount, N. C.He was about 50 years old, was vice president of the National Bank of Rocky Mount, was a bachelor, and a man of considerable wealth.At that time the defendant Alice, then the wife of W.H. Bowling, a railroad engineer, came to town.She then had or soon thereafter acquired a very unsavory reputation.She became acquainted with Arrington and became his mistress.

After that relation had continued for about two years, Arrington seemed to have tired of it, and to rid himself of the defendant Alice, on December 12, 1914, bought this McDaniel farm and put her on it, and the farm was on that date conveyed by McDaniel to J.T. Taylor of Nashville, N.C.There is a deposition of C.W. Hoskins, an attorney of Hyden, Ky., in this record, by whom it was shown that at the suggestion of the defendant Alice he represented Arrington in the purchase of this farm and that it was at Arrington's suggestion and with the knowledge of the defendant Alice that this farm was conveyed to Taylor, and that he thereafter represented Arrington in the listing of this farm for taxation, the payment of the taxes thereon, sending the receipts to Arrington, etc., including the transfer of it from Taylor to Arrington, for all of which Arrington paid him.On January 6, 1915, this deed from McDaniel to Taylor was recorded in Leslie county.

On March 15, 1916, Jackson Begley sued J.T. Taylor and the defendant Alice to recover about three-fourths of an acre of this land which he claimed belonged to him.

The defendant Alice on May 1, 1916, filed a separate answer in that suit, in which, after controverting the petition, this appears:

"The defendant, Alice Bowling, further says that she does not hereby intend to defend herein for the defendant, J.T. Taylor; and that she has no authority to enter the appearance of the said defendant herein; and that she does not do so; but she says that the defendant, J.T. Taylor, is the owner of the strip of land described in the petition of the plaintiff as claimed by the defendants, and held by them; and that she is the tenant of said strip under the said J.T. Taylor, at his will and sufferance, and that thus she holds and not otherwise.

"Wherefore she prays that the petition of the plaintiff as to her, be dismissed, without judgment prejudicial to her codefendant, and for all proper relief, including costs.

                                "Cleon Calvert
                                       "Attorney for the Defendant
                                                 Alice Bowling."
                

By this same witness Hoskins it was shown that he, for Arrington, effected a settlement of this lawsuit with Jackson Begley and that Arrington sent him the money with which to buy the claim of Jackson Begley, which money he paid Jackson Begley some time between the 10th of April, 1917, and the 25th of October, 1917.

Jackson Begley testifies that after he brought this suit he had a conversation with the defendant Alice in which she told him she had employed Walter Hoskins and Cleon K. Calvert to represent her.C.W. Hoskins and Walter Hoskins are one and the same.The defendant Alice filed no exceptions to this, she did not deny these conversations when recalled as a witness, but testified she did not employ any one to file a separate answer for her and did not know one had been filed.

Cleon K. Calvert testified:

"She came to my office sometime about the first of May, 1916, with the summons in that case which had been served on her, she gave me this summons and asked me if I would represent her, in this suit in connection with Mr. C.W. Hoskins, who always handled the business of S.L. Arrington, in this office.She left this summons with me and I have just taken it out of the files of this office, and I file a copy of the summons which she brought to me as a part of this deposition. . . .Mr. Hoskins was absent from Hyden at the time plaintiff came to me and when he came back I told him about this employment, he said to me that he would represent Taylor when they got him before the Court and for me to represent the plaintiff, and under her directions I filed the separate answer of Alice Bowling found in that record and it contains just exactly what she told me to put in it.She told me that the land belonged to Taylor and that she was Taylor's tenant, and I had no way to know any better because there were no deeds of record and I never handled the title nor had anything to do with this property for the Arringtons."

The defendant Alice does not deny this.We will discuss this later and will now state some of the other occurrences.

On July 18, 1916, J.T. Taylor conveyed this land to Arrington.Arrington died February 12, 1918, and on March 22, 1918, this deed was recorded in Leslie county.On August 8, 1918, Arrington's heirs conveyed this land to W.G. Begley, and that deed was recorded in Leslie countyMay 8, 1919.In the meantime on September 10, 1918, the present defend...