Cline v. Cline

• Decision Date: 07 December 1923
• Citation: 201 Ky. 318,256 S.W. 386
• Parties: CLINE ET AL. v. CLINE ET AL.
• Court: Kentucky Court of Appeals

256 S.W. 386

201 Ky. 318

CLINE ET AL. v. CLINE ET AL.

Court of Appeals of Kentucky.

December 7, 1923

Appeal from Circuit Court, Pike County.

Action by Martha Cline against J. S. Cline and others. Plaintiff's petition was dismissed, and she prayed an appeal, but died before it was perfected, and A. D. Cline and others moved the Court of Appeals for revival. The motion to revive was granted, and the case determined on its merits. 198 Ky. 585, 249 S.W. 348. Pending the appeal A. D. Cline and others filed an independent action, which after remand, was consolidated with the original action. On motion by plaintiff for a rule against Hon. R. B. Roberts, Special Judge of the Circuit Court, to show cause why he did not enter judgment in conformity to the opinion and mandate of the Court of Appeals. Rule denied, and motion dismissed.

Picklesimer & Steele, of Pikeville, for appellants.

Roscoe Vanover and Stratton & Stephenson, all of Pikeville, for appellees.

THOMAS J.

In 1916 Martha Cline, an aged widow residing in Pike county, Ky executed certain deeds to five of her children whereby she conveyed to each of them separate parcels of land lying near the city of Pikeville. She also executed a deed to A. D Cline, one of her sons, but he declined to accept it. She afterwards filed this equity action in the Pike circuit court against those who accepted their deeds, seeking a cancellation of them on the ground that at the time they were executed she was mentally incapacitated to do so, and that she was unduly influenced to execute them. After extensive preparation the court dismissed her petition, from which judgment she prayed an appeal to this court. Before the appeal was perfected she died, and her son, the appellant, A D. Cline, and two of her grandchildren, representing the interest of a deceased daughter, moved this court for a reviver, and for the right to prosecute the appeal in their names. That motion was resisted in this court upon the ground that Mrs. Cline, after the judgment below, and before her death, executed a writing whereby she agreed to abide by the judgment and to not prosecute the appeal. After that she executed other deeds to some of the defendants in the original action, and that fact was also relied on to defeat the reviver. A. D. Cline and others responded in this court to those objections, in which they averred the same incapacities of Mrs. Martha Cline to execute the deeds, as well as the agreement not to prosecute the appeal. The motion to revive was heard with the case on its merits, and in the opinion, reported in 198 Ky. 585, 249 S.W. 348, it was held that the matters pleaded in avoidance of the reviver were insufficient for that purpose, and on the merits of the case the deeds executed by Mrs. Cline in 1916 were held voidable upon the grounds alleged in her petition, and the opinion contained this direction to the court below:

"On the return of the case judgment will be entered canceling the four deeds in controversy. In the distribution of that part of Martha Cline's estate appellees will be credited with the expenditures made on the several lands conveyed to them and charged a reasonable rent for the use of the lands. She conveyed certain lots to several of her children prior to 1916, on which they erected buildings, and the cancellation of these deeds will not affect the title of those children to the lots previously conveyed to them."

During the pendency of the appeal, appellants, A. D. Cline and others, filed an independent action in the Pike circuit court to cancel the same writings relied on to defeat the reviver of the appeal in this court upon the same grounds as the deeds of 1916 were sought to be canceled, and that cause was pending in the lower court when this court rendered its opinion. After the execution of those papers by Mrs. Cline her children, who were the beneficiaries thereunder, sold portions of the land involved to various parties, who placed thereon valuable and costly improvements, all of which was done before this court delivered its opinion in the original appeal, reversing the judgment. Upon the filing of the mandate appellants, A. D. Cline and others, amended the original petition, in which amendment they recited the various sales made by the defendants and their coheirs, and expressed a willingness to ratify them and to require the defendants to account to them in the settlement...