Bowe v. Richmond

• Decision Date: 23 April 1908
• Citation: 109 S.W. 359
• Parties: BOWE et al. v. RICHMOND et al.
• Court: Kentucky Court of Appeals

109 S.W. 359

BOWE et al. v. RICHMOND et al.

Court of Appeals of Kentucky.

April 23, 1908

Appeal from Circuit Court, Johnson County.

"Not to be officially reported."

Action by Laura Bowe and Dewey Bowe, against James Richmond and others, in which defendants Nora Bowe, Andrew Bowe, and Ollie Bowe filed a cross-petition. From a judgment dismissing the petition and the cross-petition, the plaintiffs and cross-petitioners appeal. Reversed and remanded.

Vaughan Howes & Howes, for appellants.

C. B Wheeler and Wells & Wells, for appellees.

SETTLE J.

This appeal involved the construction of the following deed "This deed between James E. Burgess and Martha M Burgess, wife of the said J. E. Burgess, of the county of Johnson and state of Kentucky, of the first part, and Caroline Bowe and her children by A. J. Bowe, of the aforesaid county and state, of the second part, witnesseth: That the said party of the first part, in consideration of the sum of $1,000.00, nine hundred dollars in hand paid, and one hundred dollars secured by note, payable in twelve months from this date, with interest at the rate of ten per cent. thereon from this date, the receipt of which is hereby acknowledged, do hereby sell, grant and convey to the party of the second part, her heirs, the following described property, viz.: One tract of land being in the county of Johnson, state of Kentucky, on Miller's creek and bounded as follows, to wit: Beginning at a red oak on a point nearly an east course from J. E. Burgess' house; thence down the point a straight line by a hornbeam on a steep bank to Miller's creek; thence down the same as it meanders to the mouth of the branch near the main road; thence up the branch as it meanders to John Richmond's line, and with this line to the gap on the ridge where the road crosses; thence with the top of the ridge and with Richmond's line to an oak, George Walter's corner, and with Walter's line to Miller's creek to two sycamores; thence crossing the creek a straight line to a white oak, corner between said Burgess and Nancy Akers, and with their line to Peter Elliot's line, and with Elliot's line to the top of the ridge and down the same as it meanders to the beginning. To have and to hold the same with all the appurtenances thereon to the second party and her heirs and assigns forever, with covenant of general warranty. In testimony whereof witness our signatures, this, the 27th day of March, 1887. James E. Burgess. Martha M. Burgess." At the time of the execution of the above deed Caroline and A. J. Bowe had two children, Laura Bowe and Lucinda Bowe, but several years thereafter Lucinda Bowe died, leaving an only child, Dewey Bowe, an infant, to whom as heir at law descended such interest, if any, as she owned in the land conveyed by the Burgess deed. After the execution of the deed referred to three other children were born to Caroline and A. J. Bowe, viz., Nora Bowe, Andrew Bowe, and Ollie Bowe. A. J. Bowe and Caroline Bowe about 1901 conveyed certain mineral rights in the land in question to E. C. Jones, trustee for J. E. Rittenhouse, J. E. Jones, Moses Morgan, and T. J. Hughes, and about the same time attempted to convey to James Richmond the surface of the land, the deed purporting to vest in the latter the fee-simple title. This action was instituted by Laura Bowe, Dewey Bowe, infant son of Lucinda Bowe, deceased, and Caroline Bowe, his next friend, to recover the alleged interest of Laura Bowe and Dewey Bowe in the land mentioned; it being averred in the petition that they each own an undivided one-third interest therein under the deed from J. E. Burgess and wife to Caroline Bowe and her children by A.

J Bowe, the other indicated one-third, constituting, as alleged, the share of Caroline Bowe in the land, having been conveyed to James Richmond, and the mineral rights in such third to E. C. Jones, trustee, by deeds from Caroline Bowe and her husband, A. J. Bowe, to them respectively. In other words, it is alleged in the petition that the deed from J. E. Burgess and wife conveyed a joint estate in the land in question to Caroline Bowe and Laura and Lucinda Bowe, her children by A. J. Bowe, then in being, each taking title to an undivided third, and that the subsequent deeds from Caroline Bowe to Richmond and Jones, trustee, only conveyed them the undivided one-third interest of Caroline Bowe in the land and mineral rights respectively. It is further alleged in the petition that both Richmond and E. C. Jones, trustee, are in possession of and claiming the whole of the land and mineral rights therein adversely to the appellants Laura and Dewey Bowe and all others, and giving it out to the public that appellants own no part of the land, and that their (appellees') title to the land and mineral rights respectively is superior to that of appellants, which claim and statements it is averred have cast a cloud upon plaintiff's title, greatly depreciated the market value of the land, and thereby damaged appellants. The prayer of the petition asks that the appellants be adjudged the owners and given possession of two-thirds of the land, that their title be quieted, and for all proper, necessary, and general relief. The petition made Richmond, Jones, trustee, and his cestuis que trust, also Nora Bowe, Andrew Bowe, and Ollie Bowe, children of Caroline Bowe by A. J. Bowe, born since the execution of the deed from Burgess and wife to Caroline Bowe, etc., parties to the action. Nora Bowe, Andrew Bowe, and Ollie Bowe, by joint answer, counterclaim, and cross-petition each, set up claim to an interest in the land in controversy upon the ground that, though born after the execution of the deed from Burgess and wife, they by the provisions of that deed are entitled as remaindermen to a third each of the land in controversy, or to share equally with their mother and sisters in the land, if the court should adjudge that the deed from Burgess...