Bronston's Adm'r v. Bronston's Heirs

• Court: Kentucky Court of Appeals
• Writing for the Court: O'REAR, J.
• Citation: Bronston's Adm'r v. Bronston's Heirs, 141 Ky. 639, 133 S.W. 584 (Ky. Ct. App. 1911)
• Decision Date: 19 January 1911
• Parties: BRONSTON'S ADM'R et al. v. BRONSTON'S HEIRS.

133 S.W. 584

141 Ky. 639

BRONSTON'S ADM'R et al. v. BRONSTON'S HEIRS.

Court of Appeals of Kentucky.

January 19, 1911

Appeal from Circuit Court, Madison County.

Action by T. C. Bronston's administrator and others against T C. Bronston's heirs. Judgment for the defendants, and the plaintiffs appeal. Affirmed.

J. A Sullivan and S. M. Wallace, for appellants.

Smith &amp Smith, for appellees.

O'REAR J.

T. C Bronston owned a farm of about 380 acres in Madison county, which he conveyed by deed to appellees, Mrs. House and Mrs. Osborne, April 18, 1906. He had acquired the farm, most of it in 1859. About 24 acres he acquired in 1900. When he made the deed to appellees, it is said he was about 80 years old. The land was rated, it seems, at about $100 an acre. T. C. Bronston's farm adjoined a farm of Mr. Turley. The division line was crooked, marring the shape and appearance of the two tracts and entailing more expense on each owner for fencing. They agreed to straighten the line, by which a part of Bronston's farm would go to Turley and a part of Turley's to Bronston. They executed deeds in 1888. In the exchange Bronston got a long, narrow, triangular strip of land containing 4 1/4 acres. He let Turley have a strip of 3 1/2 acres. The part of the farm where this line was changed was that which Bronston had acquired in 1859. The deed made to appellees followed the calls of Bronston's original deed, taking no notice of the exchange with Turley. The strip got from Turley lays on the back side of the Bronston farm, about a half mile away from a public road, and would have to be reached by opening a passway through the Bronston farm. The strip was thrown into a field of the Bronston farm and used as a part of it from 1888. Bronston died intestate. This controversy is between his heirs at law and appellees, the grantees in the deed of 1906. The former are seeking to recover the 4 1/4 acres, together with a passway to the turnpike road, reserved impliedly it is claimed by T. C. Bronston as a passway of necessity. Appellees claim that the 4 1/4 acres were given to them as a part of the farm, and were intended to be included in the conveyance, but by mistake of the draftsman the deed was written erroneously so as not to include this strip by express terms. The proof satisfies us that T. C. Bronston intended to convey, and attempted by the deed of 1906 to convey, to appellees the whole of the farm; but that, owing to the mistake of the grantor and of the draftsman in preparing the deed, that part of the description was omitted which would have embraced the strip of land in dispute. The answer of appellees is in the nature of a counterclaim to have that deed reformed. The circuit court found the facts to be as stated above, and adjudged in favor of appellees. It is from that judgment this appeal is prosecuted.

The first question raised is as to the competency of the testimony of Mr. Smith, the attorney who wrote the deed for T. C. Bronston. Mr. Smith testified to certain information he got from Mr. Bronston at the time he was retained to write the deed, and it is contended that under section 606 subsection 5, Civ. Code, he was incompetent as a witness to testify against his client's estate and heirs, without their consent as to such information. The exceptions went to the deposition as a whole. Some parts of it were clearly admissible, aside from the feature complained of. For example, what he knew from other sources, what he had before him in drawing the deed, and the fact that he did not know of and did not take into consideration the Bronston-Turley division in 1888. The exceptions, being to the deposition as a whole, were properly overruled. L. & N. R. R. Co. v. Graves, 78 Ky. 74. But, laying that aside, and disregarding the testimony complained of, we think there was enough evidence to show that the grantor intended to convey, and undertook to convey, to appellees the entire farm of which the 4 1/4 acres was a part, and that it was an oversight of the grantor in making a misdescription...