Dukes v. Davis

• Decision Date: 16 April 1907
• Citation: 125 Ky. 313,101 S.W. 390
• Parties: DUKES ET AL. v. DAVIS ET AL. FRALEY ET AL. v. DAVIS ET AL.
• Court: Kentucky Court of Appeals

101 S.W. 390

125 Ky. 313

DUKES ET AL. v. DAVIS ET AL.

FRALEY ET AL. v. DAVIS ET AL.

Court of Appeals of Kentucky.

April 16, 1907

Appeal from Circuit Court, McLean County.

"To be officially reported."

Actions by Mary E. Davis and another against Mattie E. Dukes and another and J. M. Fraley and another, consolidated. From judgments for plaintiffs, defendants appeal. Reversed and remanded.

Jonson Wickliffe & Jonson and W. B. Noe, for appellants.

Little & Slack and W. A. Taylor, for appellees.

LASSING J.

Mary E Davis and her husband filed their suit in the McLean circuit court, seeking to recover of Mattie E. Dukes and her husband 100 acres of land. She alleged that she was the owner and entitled to the immediate possession thereof, and that it was wrongfully withheld from her by the defendants, and had been so wrongfully withheld from her without right for more than five years last past before the filing of their suit. The defendants answered, denying that plaintiff Mary E. Davis was the owner of or entitled to the possession of the land described in the petition, or any part of it, and denying that it was wrongfully withheld from her. Defendants further allege that the female defendant, Mattie E. Dukes, was the owner of the land by inheritance from her father, Isaac C Bates, and that he had acquired title thereto by purchase from J. M. Cleek, father of plaintiff Mary E. Davis, who sold it as executor of the will of his wife, Sallie W. Cleek, on July 5, 1887, to Isaac C. Bates, and that for the purpose of perfecting the title to said property in Isaac C. Bates the plaintiff Mary E. Davis and her stepmother, Mary A. Cleek united with J. M. Cleek in the execution of said deed. The affirmative matter in the answer was traversed in the reply, and the plaintiff further denied the execution of the deed, and alleged that the deputy court clerk who took the acknowledgment thereto had been induced by the fraud and deceit of her father, J. M. Cleek, and the purchaser, Isaac C. Bates, to certify that it had been so executed and acknowledged by her. She pleaded, further, that at the time the deed purported to have been executed she was an infant about 17 years of age, and that before she became of age she had married one Knight, who died in 1897, and that she did not know or discover that she had any interest in or right to the land in controversy until something less than a year before the filing of this suit. In an amended reply she withdrew so much of the former reply as charged the clerk with the participation in any fraud in the execution of the deed or in the execution of the certificate thereon, and she denied that the clerk had certified that the deed had been acknowledged by her at all, alleging that her name was at that time Mary Elizabeth Cleek, and that she always signed her name "Mary E.," and not "Mary" Cleek. She further alleged that at the time of the execution of this deed she was in Calhoun, Ky. and not in Bowling Green, Ky. where the deed purports to have been acknowledged. The defendants traversed all of the affirmative matter set up in the reply, and pleaded, further, that, although the plaintiff Mary E. Davis may have been an infant at the time of the execution of the deed in question, yet, by the death of her husband in 1897, all disability was removed, and that by her failure to bring her suit within three years after the removal of the disability she had lost her right so to do, and they pleaded and relied upon the statute of limitations. The affirmative matter in the rejoinder was traversed in the surrejoinder. Issue was joined by the parties upon several other points which we have not deemed material in determining the main question in issue, and which are therefore unnoticed in this opinion.

Plaintiffs likewise filed a suit against J. M. Fraley and C. C. Coakley, seeking to recover about 100 acres of land which they alleged the defendants were wrongfully and without right withholding from her and had been for more than five years, and that the plaintiff Mary E. Davis was the owner and entitled to the immediate possession thereof. The 100 acres of land described in this suit was one-half of 200 acres of land which was conveyed by J. M. Cleek and wife, Mary A. Cleek, and daughter, Mary E. Cleek, now Mary E. Davis, by deed dated July 5, 1887, and which was divided, upon the death of Isaac C. Bates, between his two children, Sallie R. Peeple and Mattie E. Dukes, and Sallie R. Peeple conveyed her interest in said land to these defendants. The pleadings are identical in each of these suits, and by agreement of parties the cases were consolidated and tried together; the same questions being involved in each.

The first point to be determined is: Did Mary E. Davis sign and acknowledge the deed in question? If she did not, then it is necessary to consider the other questions at issue in this case. If she did sign and execute it at a time when she was under 21 years of age, has she delayed the bringing of her suit to recover same or to avoid the signing and executing of same during her minority for such a length of time as that she is now estopped from setting up any claim to the land, or seeking to avoid the force and effect of her act in signing and acknowledging the deed when an infant? The deed in question is as follows:

"This deed of conveyance made and entered into this 5th day of July, 1887, by and from James M. Cleek, his wife, Mary A. Cleek, and daughter, Mary E. Cleek, of the county of Jefferson in the state of Texas, parties of the first part hereto, unto and with Isaac C. Bates, of McLean county in the state of Kentucky, witnesseth: That for and in consideration of the sum of seven hundred and fifty dollars, four hundred cash in hand, one hundred and seventy-five due in twelve months from date with interest from date, and one hundred and seventy-five dollars due in two years from date with interest from date, for which two last named sums notes of this date are executed by I. C. Bates to J. M. Cleek, the receipt of which is hereby acknowledged by the parties of the first part, said parties have this day granted, bargained and sold, aliened and conveyed, and do hereby grant, bargain and sell, alien and convey unto the party of the second part and to his heirs and assigns forever a certain tract or parcel of land lying and being in the county of McLean in the state of Kentucky, on the waters of Cypress creek and bounded as follows, viz.: 'Beginning on a large hickory and black oak, and running thence S. 40~>> E. 244 poles to a hickory marked T. H. on the bank of pond drain; thence N. 55~ E. 170 poles to a hickory, ash and white oak; thence N. 38~ W. 169 1/2 poles to a stake, with four hickories pointers; thence S. 55~ W. 124 to a swamp oak in the pond drain; thence down the drain with its meanders to an ash on the drain and thence S. 26~ W. 10 poles to the beginning, containing two hundred acres more or less.' To have and to hold said lands to the party of the second part, his heirs and assigns, forever with covenants of general warranty. The above land being the same willed by Mrs. M. A. Mitchell to her daughter Woodie Cleek, wife of J. M. Cleek, and mother of Mary Cleek. In testimony whereof the parties of the first part have hereunto set their hands the day first herein written. J. M. Cleek, Ext. M. A. Cleek. Mary Cleek.

The State of Texas, County of Jefferson. Before me, J. A. Lanier, a notary public, in and for Jefferson county, Texas, on this day personally appeared J. M. Cleek, known to me to be the person whose name is subscribed to the foregoing instrument of writing, and the contents of said instrument being fully explained to said J. M. Cleek, after he had produced the same, he the said J. M. Cleek, thereupon declared that he did fully and voluntarily, execute and deliver the same to be his act and deed, for the purposes and consideration therein expressed, and consented that the same might be recorded, to all of which I certify. Given under my hand and seal of office at Beaumont, Texas, this 5th day of July, 1887. J. F. Lanier, Notary Public Jefferson County, Texas. [ Seal.]

State of Kentucky, Warren County--sct.: I, S. M. Matlock, clerk of the Warren county court, do certify that the foregoing deed from J. M. Cleek, etc., to I. C. Bates was produced to me in said County and acknowledged by Mary A. Cleek and Mary Cleek to be their act and deed, whereupon I have duly certified the same to the proper office for record. Given under my hand this 8th day of July, 1887. S. M. Matlock, C. W. C. C., by Robert Rodes, Jr., D. C.

State of Kentucky, County of McLean--sct.: I, J. A. Rudy, clerk of the McLean county court certify that the foregoing deed was this day lodged in my office for record, that the same and the several certificates thereon and this certificate are duly recorded in my office. Given under my hand this July 12th, 1887. J. A. Rudy, Clerk per A. I. Moore, D. C."

It will be observed that the deed recites that it is made and entered into by and between James M. Cleek and wife, Mary A. Cleek, and daughter, Mary E. Cleek, of the county of Jefferson, in the state of Texas, parties of the first part, and Isaac C. Bates, of McLean county, Ky. party of the second part; that it is signed by "J. M. Cleek, Ext.," M. A. Cleek and Mary Cleek; that the acknowledgment to this deed by J. M. Cleek was taken before a notary public in Jefferson county, Tex., on the 5th day of July, 1887, and by M. A. Cleek and Mary Cleek before Robert Rodes, Jr., deputy county court clerk of Warren county, Ky. on July 8, 1887, and lodged for record in the McLean county court clerk's office on July 12, 1887.

There is an utter failure of proof in support of the allegation that there was any fraud...