Bonner v. Wedekind

• Decision Date: 14 February 1922
• Parties: BONNER v. WEDEKIND.
• Court: Kentucky Court of Appeals

237 S.W. 394

193 Ky. 743

BONNER v. WEDEKIND.

Court of Appeals of Kentucky.

February 14, 1922

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Louisa Wedekind against H. S. Bonner. Judgment for plaintiff, and defendant appeals. Affirmed.

Barret Allen & Attkisson, of Louisville, for appellant.

Samuel G. Tate and W. H. Wright, both of Louisville, for appellee.

SETTLE J.

On the 2d day of December, 1914, the appellee, Louisa Wedekind, and her husband, Ernest H. Wedekind, sold and, by deed of general warranty then executed and later duly recorded, conveyed to the appellant, H. S. Bonner, a lot of ground lying on the south side of Chestnut street, between Seventeenth and Eighteenth streets, in the city of Louisville. The consideration for the conveyance was $6,500, of which $2,500 was paid in cash by the appellant, and for the $4,000 remaining he executed to the appellee, Louisa Wedekind, five notes, of $800 each, the first payable three years after date, and the others one, two, three, and four years respectively, from and after the maturity of the first; all bearing 6 per cent. interest from date, payable semiannually. The deed retained a lien on the lot to secure the payment of all the notes, and in addition contained a provision to the effect that, if any of the notes or installments of interest remained unpaid for a period of 90 days after the maturity of same, in such event all the unpaid notes and interest should then become due, and the holder of them have the right to sue for their collection and the enforcement of the vendor's lien retained in the deed for their payment. After the maturity of the first, second, and third of these notes, and the failure of the appellant to pay them within 90 days following their maturity, respectively, or at all, the appellee brought this action against him in the court below seeking to recover the amount of each of the five notes and accrued interest, and the enforcement of the vendor's lien on the lot in question for the payment of the whole.

The appellant filed an answer and counterclaim of two paragraphs; the first traversing the averments of the petition because, as therein stated, of the reasons set forth in the second paragraph. In the second paragraph it was alleged, substantially, that the appellee, Louisa Wedekind, at the time the appellant purchased of her the lot in question, represented to him that she owned, and the deed made him by her and her husband purported to convey him, with covenant of general warranty, the fee-simple title to the lot, but that she did not in fact own or convey him such title, and was without power to do so. It was further alleged that whatever title she had to the lot was obtained by and under a devise in the eleventh clause of the will of C. F. Prante, by whom she had, when a girl, been adopted as a daughter, and that by the terms of the devise--

"she neither had nor can have the fee-simple title to the property mentioned in the petition, for the reason that, should her several children, now living, die prior to the death of plaintiff herein, then the testator has provided that upon her death the parcel of land hereinbefore mentioned should be sold by his executors, and has provided for the distribution of the proceeds of sale, making others than the heirs at law of plaintiff herein beneficiaries."

Following the allegations contained in the foregoing excerpt from the second paragraph of the pleading referred to, it is also averred that, for the reasons stated therein, the appellant is entitled, on the ground of a failure of consideration, to the cancellation of the deed by which appellee and her husband conveyed him the lot; likewise the cancellation of the notes executed by him for the property, and also the return of the money paid by him in cash on the property at the time the notes were executed, all of which relief was asked by the prayer of the answer and counterclaim, with the reservation that, if the court should adjudge that the appellee, Louisa Wedekind, took under the devise in the will of C. F. Prante the fee-simple title to the lot, the appellant, in that event, would be satisfied with the deed received of appellee and her husband, and pay the several notes sued on.

A copy of the deed from appellee and husband to appellant was filed with the petition, and a copy of the will of C. F. Prante with the answer and counterclaim. The deed recites that the lot thereby conveyed was devised the appellee, Louisa Wedekind, by the will of C. F. Prante. So that is an admitted fact. The appellee filed a general demurrer to the second paragraph of the appellant's answer, following which the case was submitted in the court below upon the demurrer, other pleadings, and the exhibits mentioned. By the ruling of that court the demurrer to the second paragraph of the answer and counterclaim was sustained, and the appellee awarded a recovery against the appellant for the amount of each of the notes sued on and interest, subject to a credit of $150 on the first; also the enforcement of the lien asserted by her against the lot by its sale in satisfaction of the several notes and the costs of the action. From the judgment entered, pursuant to these rulings, to which the appellant at the time excepted, he was granted and is now prosecuting this appeal.

It is patent from what has been said that the character of appellant's title to the lot involved in this action, and that she, with her husband, conveyed the appellant, must be determined from the language and meaning of that part of the will of C. F. Prante by which it was devised her. By the tenth clause of the testator's will all his estate, real and personal, except certain specific legacies bequeathed in the preceding clauses, was devised to his wife, Louisa Prante, for life, with power to sell and convey all or any part of the real estate, except the lot in question, and reinvest the proceeds. So much of the eleventh clause of the will as is pertinent to the question of title here involved is as follows:

"After the death of my wife, I give and devise to Louisa Dorothea Vieselman (Mrs. Wedekind), who has been raised in my family and is known as Louisa D. Prante, my house and lot on the south side of Chestnut street between Seventeenth and Eighteenth streets, conveyed to me by one D. O. Hare by deed recorded in Deed Book 175, page 501, to have and to hold

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