Campbell v. Wells

• Decision Date: 05 May 1939
• Citation: 278 Ky. 209
• Parties: Campbell et al. v. Wells et al.
• Court: Supreme Court of Kentucky

278 Ky. 209

Campbell et al. v.Wells et al.

Court of Appeals of Kentucky.

May 5, 1939.

1. Curtesy. — The children of mother dying intestate in 1876 owned fee of mother's land, subject to father's life estate by curtesy.

2. Deeds. — The character of a deed is to be ascertained from intent and purpose of parties in executing it as revealed by language of entire instrument.

3. Deeds. — The rule that intention of parties to a deed as determined from examination of the whole instrument is to be given effect, should be given preference over all others.

4. Deeds. — Confused and ambiguous language in deed will be construed against grantor and in favor of grantee.

5. Deeds. — A deed in which grantor creates a doubt as to extent of interest or character of estate conveyed will be resolved against grantor and interpreted as conveying the largest interest which grantor was capable of transferring.

6. Deeds. — Conveyances of real estate may be construed as transferring an absolute title rather than a lesser one, if the language employed is susceptible of two constructions.

7. Deeds. — An acquiescing interpretation of deed as an absolute conveyance by immediately interested parties is a strong indication in cases of doubt of what was intention of parties to deed when it was executed.

8. Deeds. — The intent of parties to deed as to interest conveyed must be ascertained, whether conveyance is one of bargain and sale, or otherwise.

9. Deeds. — A deed by which grantors conveyed "all" of designated tract of land, "being an undivided one-half interest" inherited from their mother, conveyed grantor's entire interest which was the fee, where grantors intended to part with all their interest in the land, notwithstanding that they believed that they had only a one-half interest.

Appeal from McLean Circuit Court.

E.B. ANDERSON and W. FOSTER HAYES for appellants.

J.H. THOMAS, R.A. BUCKLES, R.D. BRANIGIN and J.F. WILLIAMSON for appellees.

Before George S. Wilson, Judge.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

On September 11, 1933, A. Campbell, Ida Howard and Oma Adams filed their petition in equity, naming Byron Wells and wife defendants.Plaintiffs below are appellants, and the defendants below, with the Federal Land Bank of Louisville, intervenor, are appellees.

The petition alleged that Sharlotta Campbell died intestate in 1876, leaving surviving, her husband Thomas Campbell, and three children, A. Campbell, Ida and Oma Campbell, and that Thomas Campbell died in 1932, leaving the three children as his only heirs at law.

At the time of the mother's death she owned a 96 acre tract of land in McLean County, conveyed to her by her parents, Allen and Patsey Howard, in 1873.It is alleged that upon the death of Sharlotta Campbell, which occurred prior to January 30, 1904, the parcel of land descended to and became the property of plaintiffs, subject to the curtesy right of Thomas Campbell.Thomas and Sharlotta were married prior to March 14, 1873, (date of deed to Sharlotta) and the three children were born prior to 1894.

They say that in 1904, acting under the belief that the father held a half interest and they a like interest in the tract of land, they conveyed to W.J. Owen their interest, and the grantee took and held possession of the whole tract until some time in February 1909, when he undertook to convey to Byron Wells, and that under said conveyance Wells has been in possession and occupancy of said tract since the death of Thomas Campbell, which occurred on April 27, 1932, and they ask for the fair rental value of said lands since that date.

Alleging that their several interests in said land is an undivided one-sixth, they sought to have the court adjudge each to be the owner of such interest, asking for division, setting apart to Wells an undivided one-half interest, according to quantity, quality and value, and for recovery from Wells of $100 per year as rental for the years 1932 and 1933.

Defendants answered denying the material allegations of the petition, and in a second paragraph averred that they bought from Owen on January 30, 1904, by general warranty deed, and that since their purchase Owen has died; that Thomas Campbell died previous to 1915(error) and that upon his death any interest he might have had in the land terminated.They state that they, the defendants, and their immediate grantor have been in actual, open, continuous adverse possession of the tract of land since January 30, 1904, and ask that they be declared the owners in fee of the entire tract of land.

Copies exhibited show general warranty deed of March 14, 1873, Allen and Patsey L. Howard to Sharlotta Howard, the consideration thereof being $500, and the support of grantors during natural lives, and reserving lien for the fulfillment of that purpose.Arthur Campbell and wife, Ida Campbell Howard and husband, and Oma Campbell Adams and husband, conveyed to Owen by general warranty, the consideration being $200; the date of the deed being January 30, 1904.

At this point in the proceedings, the Federal Land Bank of Louisville filed its intervening petition and answer, showing that about July 8, 1921, Wells and wife executed to it a promissory note for $600, payment of which was secured by a mortgage on the entire tract of land involved.The mortgage carried the usual precipitating clause.This intervenor, further answering adopted the allegation contained in the answer of its codefendants, Wells and wife, and joined in the prayer for dismissal of plaintiff's petition, and also prayed that its mortgage debt be adjudged a lien prior and superior to all other interests and claims against the property.

Plaintiffs filed reply in which they denied that they had conveyed to Owen, by deed of January 4, 1904, or at all, the entire tract of land described in the petition, or that they conveyed any greater interest than the one-half undivided interest.Further answering, they say that Owen, by his deed to Wells, February 24, 1909, conveyed no greater interest than he had acquired from them, to-wit: the undivided one-half, or that he had the right to convey any greater interest.They denied that the deed from Owen purports to convey more than their one-half undivided interest, and further that Thomas Campbell(father) died prior to the year 1915, or at any time prior to the date set out in their petition, April 27, 1932, which is the correct date of his death.

In an amended petition filed after some proof was taken, plaintiffs say that by mistake of the draftsman they failed to state that Ida Howard, after January 30, 1904, had died leaving surviving her the plaintiffJ.D. Howard and four children as the heirs at law of said Ida Howard, who was Ida Campbell, and ask that these be, and they were, made parties.

They further say the land cannot be divided without materially impairing its value, or the value of each interest, and request a sale and division of the proceeds.Defendants, Wells and wife, amended their answer, denying that the land cannot be advantageously divided, but say that it can be so without impairment to the whole or any part.They further alleged that on October 26, 1883, Thomas Campbell executed and delivered to James Herndon a bond for deed for a parcel of land known as the "Allen Howard" farm, admittedly the same tract of land described in the petition, and later a deed was executed in conformity with the bond, but they are unable to discover that it was ever put to record.

On December 15, 1887, James Herndon delivered to J.W. Green a certain "deed of entrance covering upon the same premises involved."Green and wife, on October 24, 1893, signed a deed to W.J. Owen, conveying the same premises described.They allege that by reason of the instruments above named, they and their immediate grantors acquired the life estate and any and all interest the said Thomas Campbell had in his wife's land; that they acquired their title from Owen, and he had acquired title to the remainder interest of the plaintiffs by the general warranty deed of January 30, 1904, and that the consideration stated therein was a fair and reasonable price for the remainder, burdened as it was with the life interest of W.T. Campbell and his subsequent grantees.They again plead that they and their predecessors in title have been in adverse possession, having the land under well defined boundary for more than fifteen years, and since 1873.They allege the placing of valuable and lasting improvements on the property, and ask protection of their interest.

This ended the pleadings, except that by agreement of the parties, all affirmative matter in pleadings not specifically denied stood controverted of record.

The court, upon submission, quieted Wells' title to the entire tract, and plaintiffs below are appealing.There is only one matter to be determined, and that is the effect of the deed of 1904 to W.J. Owen.The court in rendering judgment did not give his reason for adjudging that plaintiffs were not entitled to recover.It is said, however, that the court, construing the language used in the deed, in the light of surrounding circumstances, held that grantors intended to and did convey their entire interest in the tract of land

The only proof taken on the issues was that of certain persons who proved the death of Thomas Campbell in 1932, and some proof on the part of the son Arthur as to his and his sister's erroneous belief as to what interest they owned at the time they conveyed to Owen.It is not to be overlooked that the...