Boone v. Robinson

• Citation: 151 Ky. 715,152 S.W. 753
• Parties: BOONE et al. v. ROBINSON et al.
• Decision Date: 24 January 1913
• Court: Kentucky Court of Appeals

152 S.W. 753

151 Ky. 715

BOONE et al. v. ROBINSON et al.

Court of Appeals of Kentucky.

January 24, 1913

Appeal from Circuit Court, Clark County.

Action by Mary E. Boone and others against William Robinson and others. Judgment dismissing the petition, and plaintiffs appeal. Reversed.

J Smith Hays and J. Smith Hays, Jr., both of Winchester, for appellants.

John M Stevenson, of Winchester, for appellees.

MILLER J.

Prior to 1908, J. W. Ried owned an undivided one-half interest in a lot fronting 38 feet and 5 inches on the east side of North Main street, in Winchester. The heirs of J. P. Stubblefield owned the other undivided half interest therein. By deed of partition, dated August 1, 1908, between the Stubblefield heirs, as parties of the first part, and J. W. Ried, as party of the second part, the owners undertook to divide said lot "so as to make what they considered an equal division thereof." In attempting to carry out that agreement, the Stubblefield heirs conveyed to Ried "the southern half of said property hereinafter described, to wit, twenty (20) feet running back the same width to an alley about the same distance of 210 feet"; and Ried conveyed to the Stubblefield heirs "the other half, being the northern portion of said property hereinafter described, and containing 18 feet and 5 inches in front, and running back the same width to an alley, being about 210 feet." This deed was doubtless drawn upon the theory that the property was rectangular in shape, and 38 feet and 5 inches wide throughout its entire depth. In January, 1909 however, and after Ried had begun to erect a partition fence between said lots, it was discovered for the first time that, while the original lot fronted 38 feet 5 inches upon North Main street, it had a width of only 35 feet and 5 inches upon the alley, and that it was therefore impossible for both lots to have their respective denominated widths throughout. In other words, if Ried's lot should be extended 20 feet in width throughout to the alley, it would leave the Stubblefield heirs a width of only 15 feet and 5 inches upon the alley, while their deed calls for 18 feet and 5 inches in width throughout, from the street to alley. When the mistake was discovered, the Stubblefield heirs and Ried entered into a written agreement on January 18, 1909, which, after reciting that the parties then thought said lot was less than 38 feet and 5 inches in the rear, that the line had not been definitely established, and, in view of the fact that Ried wanted to erect a partition in the building fronting on Main street, the parties agreed "that, in the event said line is definitely established according to the provisions of said deed, and the partition proposed to be erected by said Ried is over that line on the property of the heirs of J. P. Stubblefield, deceased, said Ried agrees to remove said partition and place it on the line at his expense, and without expense to said Stubblefield heirs."

On December 5, 1910, the appellants, being part of the Stubblefield heirs, and the grantees of the remaining Stubblefield heirs, brought this action against the appellees, as the heirs of J. W. Ried, and the owners of his interest in said land, in which they set up the foregoing facts, alleging the mistake as to the width of the rear boundary of said lot, its discovery, the building of the partition by Ried, and the written agreement with respect thereto, and that the defendants were wrongfully setting up a claim to a small portion of plaintiffs' lot, which they had inclosed by said partition fence, and were thereby in possession of a triangle of plaintiffs' land fronting 1 foot and 6 inches on the alley, and extending to a point on Main street. The petition prayed that the court cause said lot to be surveyed, and said partition line as fixed by said deed of partition be properly located. The effect of the prayer is that the deed be reformed so as to correct the contradictory description, and locate the division line accordingly. The circuit court sustained a demurrer to the petition; and, upon plaintiffs standing by their petition, it was dismissed, and from that ruling the plaintiffs prosecute this appeal.

We have not been favored with a brief for the appellees, or an expression of opinion by the circuit judge as to the ground upon which his ruling was based. In the brief for appellants however, it is stated that the point of the demurrer, as stated by counsel for appellees, was that the petition did not allege a mistake at the time...