Baker v. Begley

• Decision Date: 10 October 1913
• Parties: BAKER et al. v. BEGLEY.
• Court: Kentucky Court of Appeals

159 S.W. 691

155 Ky. 234

BAKER et al. v. BEGLEY.

Court of Appeals of Kentucky.

October 10, 1913

Appeal from Circuit Court, Leslie County.

Action by Garred Begley against Susan Baker and others. From a judgment sustaining a demurrer to the second paragraph of defendants' answer, they appeal. Reversed and remanded with instructions.

Cleon K. Calvert, of Hyden, for appellants.

Lewis &amp Lewis, of Hyden, for appellee.

MILLER J.

This appeal presents a question of pleading only. The original petition may be disregarded, since it has been superseded by the amended petition.

In his amended petition Garred Begley alleged that on March 5, 1898 William Baker, being then the owner of 30 acres of land described in the petition, executed to his son, the defendant Matt. Baker, a title bond for land; that Matt. Baker requested William Baker to execute a deed to the appellee Garred Begley, in accordance with the terms of the title bond, and that William Baker did so. The amended petition further alleged that this deed had been mutilated, and parts of it lost, and that it never had been recorded. By way of relief, Begley prayed for a re-execution of the lost deed.

The answer, by its first paragraph, specifically denied each and every allegation of the amended petition. By way of counterclaim, the second paragraph of the amended answer alleged that William Baker sold the land to his son, Matt. Baker, on March 5, 1894, giving him a title bond therefor. It further alleged, however, that after the execution and delivery of the title bond Matt. Baker entered upon said land, and cut down and carried away certain trees, whereupon the plaintiff, Begley, claimed said land, representing to Matt. Baker and William Baker that the 30 acres described in the petition were embraced within a senior patent for 50 acres made in the name of Pleasant Begley; that, Matt. Baker and William Baker believing the statements and representations of Garred Begley to be true, and that the trees belonged to him, Matt. Baker directed his father, William Baker, to execute a deed of conveyance direct to Garred Begley for the 30 acres, which was done; that subsequently, however, it was discovered that Garred Begley had fraudulently, and to the end that he might secure said 30 acres of land, and prior to March 5, 1894, gone upon said land, and with an ax or hatchet had marked certain trees as being corners of said Pleasant Begley 50-acre survey, and had so marked said trees as to make it appear that said 50-acre survey covered and embraced the 30 acres of land in controversy, although the Pleasant Begley 50-acre survey was more than a mile distant from the 30-acre tract in controversy. The counterclaim further alleged there was no consideration for the deed to Garred Begley, and asked that it be canceled, and that Matt. Baker be adjudged to be the owner of the equitable title by virtue of his title bond from his father.

The circuit judge sustained a demurrer to the second paragraph of the answer, upon the ground, as we are informed by the briefs, that it showed upon its face that the fraud complained of was perpetrated prior to March 5, 1894, which was more than ten years before this action was instituted. The defendants appeal.

The correctness of the ruling upon the demurrer is the sole question before us. By section 2515 of the Kentucky Statutes it is provided that an action for relief on the ground of fraud or mistake must be commenced within five years next after the cause of action accrued, and, by section 2519, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake;...