Bartlett v. Gouge

• Decision Date: 11 October 1844
• Citation: 44 Ky. 152
• Parties: Bartlett v. Gouge.
• Court: Kentucky Court of Appeals

44 Ky. 152

Bartlett v. Gouge.

Court of Appeals of Kentucky.

October 11, 1844

Dower. Trustees.

ERROR TO THE GRANT CIRCUIT.

Cates & Lindsey, and McCann for plaintiff.

Payne for defendant.

OPINION

MARSHALL JUDGE:

Object of the bill.

THIS bill was filed by Catharine Bartlett, for the purpose of obtaining dower in a tract of 600 acres of land, which had been conveyed by her deceased husband, Joel Bartlett, to the defendant, Gouge, during the coverture. The claim was resisted, on the ground that Bartlett had held the title only in trust for Gouge, and had no beneficial interest in the land, which would entitle the widow to dower. And whether this ground is sufficiently made out to authorize the decree dismissing the bill, is the only question in the case.

It appears, that as early as 1815, Gouge was living on the land and the legal title being then in the heirs of Bernard Todd, residents of Virginia, Philip G. Todd, one of those heirs, who was attorney in fact for the three executors of Bernard Todd, authorized by his will to sell the land, contracted with Gouge for the sale and conveyance of said 600 acres, at the price of fifty cents per acre, and gave him a bond for conveyance, when the price should be paid, of which one-half was then received The bond contains the following description of the land, viz: Beginning at the west corner of the original survey, at a white oak, sugar tree and linn; thence with a line of the same, north 50 east, crossing the Dry Ridge road, and continuing the course so far as will include said Gouge's improvement; thence such a course as shall cross the road at the south end of said Gouge's improvement, and continuing that course to Merriwether's line of said tract.

Facts of the case.

Bartlett seems to have been a clock peddler, resident in Virginia, but who came frequently to Kentucky in the way of his business and seems to have been here in 1828. In 1829, he received a deed from Philip G. Todd, as attorney for the heirs of Bernard Todd, for the 600 acres of land now in controversy, which was described in the deed in precisely the same terms as in the bond to Gouge, without addition or alteration. This deed also contained a special warranty, such as is called for in the bond; but it states a consideration of $600 instead of $300, as mentioned in the bond. In 1831 or 1832, Bartlett was married to complainant. In 1833 he conveyed the land to Gouge, under precisely the same description as is contained in the bond and deed from Todd; but for the alleged consideration of $600, and with a general warranty; and in 1834, he died. It may be remarked, that the testimony does not establish with absolute certainty, the identity of Bartlett, the husband of the complainant, with Bartlett the grantee in one, and grantor in the other of the deeds above noticed. But assuming this to be sufficiently certain: it is also certain that Bartlett had notice of Gouge's equity when he took the deed from Todd. For not only was the possession of Gouge sufficient to fix the notice on him, but the deed itself...