Banton v. Campbell's Heirs

• Decision Date: 29 September 1849
• Citation: 48 Ky. 587
• Parties: Banton v. Campbell's Heirs, & c.
• Court: Kentucky Court of Appeals

48 Ky. 587

Banton v. Campbell's Heirs, & c.

Court of Appeals of Kentucky.

September 29, 1849

Husband and Wife. Writs of Error. Limitations. Distribution.

ERROR TO THE MADISON CIRCUIT.

Turner for plaintiff.

Caperton for defendants.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated in the bill

IN 1823, John and Elizabeth Banton filed their bill, in right of the latter, to have a settlement, distribution and division of the estates, consisting of land, slaves and personalty of Samuel and Mary Campbell, the parents of Mrs. Banton. The bill alleges, that the said Samuel and Mary held a tract of land, by joint conveyance made to them during coverture, on the equitable right of said Mary, that they had conveyed portions of it to their two sons, Samuel and William, as advancements, and on condition that they were to have no farther part of the estate until the other children, eight in number, should be made equal to them; that Samuel Campbell the ancestor, died intestate, possessed of slaves and personalty, and leaving his wife, Mary, the survivor, and that she had, before her death, made her will, devising to her sons, John, William, James, Anderson and Caldwell, portions of said land, on condition that they should relinquish all farther claim on the estate of herself and their father, until the other heirs were made equal. The bill seeks to enforce the alleged condition of the conveyances and devises above mentioned, calls upon the six sons to elect whether they will bring the land into hotchpot, and whether they hold under the will of their mother, and prays for a sale of the slaves of their father, Samuel Campbell, and distribution of the proceeds, and for settlement and distribution of the personalty of both estates.

All the children of Samuel and Mary Campbell, (being nine besides the complainant,) answered the bill. Samuel and William denied the alleged condition of the conveyances to them, refused to bring into hotchpot, the land so conveyed, and claimed an equal share of the slaves of their father, and of the personalty of both estates; and William, to whom about seven acres of land had been devised by his mother's will, on the condition above noticed, disclaimed that provision. The other defendants intimate some doubt as to the sufficiency of the deeds to Samuel and William to pass the title of their mother, and referring this question to the Court, insist upon the condition on which they were made, as alleged in the bill. These defendants all express a willingness to abide by the will of their mother, or in case that should be set aside, they ask for an equal and just division, & c. The answer of one of these defendants was made a cross bill against the co-defendants, William and Samuel alone, and upon the single question as to the condition or understanding on which the conveyances to them were made, as alleged in the original bill. The denials of the answers are positive.

The answer of the defendants.

In September, 1823, by consent of parties, commissioners were appointed to make sale of the slaves, and to make settlement with the administrators.

In March, 1824, by consent, it was decreed that the landed estate of Samuel and Mary Campbell, deceased, be divided equally (quantity and quality being regarded) between the eight heirs, including the complainants, and excluding the defendants, William and Samuel; and commissioners were appointed to make the division. On the 13th day of the same month, March, 1824, the commissioners made their report, allotting among the eight heirs, as directed, the whole tract of 1528 acres, except 420 acres, the aggregate of the two portions designated in the report as having been conveyed to William and Samuel, who were excluded from this division.

Consent decree in the Circuit Court.

This report, to which no exception was ever filed, was confirmed by a decree of March, 1825, in which conveyances were directed, according to the report, and the cross bill against William and Samuel Campbell was dismissed. By the same decree, the personal estate and proceeds of the slaves were directed to be equally divided among all the heirs, and commissioners were directed to ascertain the amounts coming to each heir of Samuel and Mary Campbell, deceased, from the personal estate of both, and from the slaves, the proceeds of the sale of which were directed to be paid over to those entitled under the decree.

In September, 1825, the commissioner appointed for the purpose, reported separate deeds to all of the heirs except William and Samuel, (who, as the order says, have heretofore received deeds from their father,) and the deeds were approved and ordered to record. The orders from this decree of September, 1825, until February, 1832, were merely interlocutory, or making allowances to commissioners, to which there was no objection.

In February, 1832, a decree was rendered, which, reciting that the commissioners for dividing the land had made their report, and that the commissioners to sell the slaves and settle with the administrators, had also reported, proceeded to confirm their several reports, and directed the administrators and the commissioners who had sold the slaves, to pay over to the heirs the sums to which they were found entitled by said reports, the administrators reserving enough in their hands to pay the costs of this suit, and reasonable fees to the counsel employed.

In 1834, a writ of error was prosecuted by Banton and wife, for the reversal of the decrees of 1824, 1825 and 1832, and the defendants having pleaded that, as to all the decrees except the last, the writ was barred by lapse of time, the Court decided that it was barred, except as to the last decree, and refusing to inquire into the propriety of the distribution made according to the decree of 1825, and to which there was no exception, and which had been confirmed by the decree of 1832, this last decree (of 1832,) was reversed, because of the discretion given therein to the commissioners and the administrators, who were left to carry out the distribution, without farther action of the Court; and the cause was remanded for proper proceedings to effectuate the decrees of 1824 and 1825: See Banton and wife vs Campbell's Heirs, (2 Dana, 421.)

The case referred to: (2 Dana, 421.)

What was done under this mandate does not appear; but now, in 1847, John Banton having died in July, his widow, E. Banton, prosecutes a writ of error, issued in September, 1847, for the reversal of the decrees of 1823, 1824, 1825, 1826 and 1832, and the singular spectacle is exhibited of a widow's attempting, by writ of error to reverse one decree which, on the previous joint writ of her husband and herself had already been reversed, and to reverse others, as to which it had been determined against her husband and herself, that the same writ was barred by the lapse of the statutory period for suing out writs of error.

The question now presented as to the right of the wife to prosecute a second writ of error to a decree, when herself and husband had been parties plaintiff, in his lifetime, for the same purpose.

The defendants in error did not, however, in the first instance, rely on the reversal of the decree of 1832, or the judgment in bar of the joint writ as to the other decrees, but pleaded the statute of limitations, prescribing three years as the period within which writs of error must be sued out. The plaintiff replied, her coverture until within two years before the emanation of the writ, and the defendants having demurred to the replication, the whole record was submitted to the Court, as well for the determination of the question arising on the demurrer, as for a decision upon the merits, if the answer to the plea in bar should be deemed sufficient.

On the first hearing of the case, the Court being of opinion that there was no error in the partition of the land, affirmed the...