Dupoyster v. Ft. Jefferson Imp. Co.

Decision Date11 May 1904
Citation118 Ky. 196,80 S.W. 800
PartiesDUPOYSTER et al. v. FT. JEFFERSON IMP. CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Ballard County.

"To be officially reported."

Action by the Ft. Jefferson Improvement Company against Rebecca S Dupoyster and others. From a judgment for plaintiff defendants appeal. Reversed.

White &amp Ray, for appellants.

F. H Sullivan, J. M. Nichols & Son and J. Smith Hays, for appellee.

PAYNTER J.

This is the fourth time this case has been here. However, each appeal presented a different question for review. On a former appeal it was decided that of the land conveyed by J. C. Dupoyster and Ben S. Dupoyster to the appellee Ft. Jefferson Improvement Company one-half belonged to J. B. Dupoyster and Delva D. Edwards, three-eighths to J. C. Dupoyster, and one-eighth to Rebecca S. Dupoyster; but the latter was not before the court in the proceeding wherein the court adjudged a lien on one-half of the land on the rescission of the contract between J. C. and Ben S. Dupoyster and the appellee. The various proceedings had are made to appear in the opinions of the court on former appeals (Ft. Jefferson Improvement Co. v. Dupoyster, etc., 51 S.W. 810, 21 Ky. Law Rep. 515, 48 L. R. A. 537; Ft. Jefferson Improvement Co., etc., v. Dupoyster, etc., 66 S.W. 1048, 24 Ky. Law Rep. 1199; and Dupoyster, etc., v. Ft. Jefferson Improvement Co., 72 S.W. 268, 24 Ky. Law Rep. 1782); hence much detail of fact will be omitted here. The appellant claims that she not only owns the one-eighth by inheritance, but that she had acquired her husband's three-eighths interest in the land by virtue of a deed dated August 14, 1889, which he executed to her. The facts are the appellee procured a rescission of the contract of sale and claimed a lien upon J. C. Dupoyster's three-eighths interest in the land and the one-eighth interest which the appellant owned by inheritance for the purchase money which had been paid to J. C. Dupoyster as an individual and as administrator of the estate of Ben S. Dupoyster. It appears that on September 17, 1890, in consideration of a large sum of money, Ben S. Dupoyster, J. C. Dupoyster, and the appellant acknowledged a deed to appellee for a large tract of land, which deed was delivered to S. J. Moore in escrow. In a writing which accompanied the deed it was recited that when appellee presented J. C. Dupoyster's receipt for the first payment on the land--it being $25,000-- the deed was to be recorded. Instead of presenting a receipt for that amount, J. C. Dupoyster in writing consented that the deed should be recorded by means of the payment to him of $5,500 as administrator of Ben S. Dupoyster, whereupon the deed was recorded. Subsequently the appellee paid J. C. Dupoyster sums aggregating about $3,000. The record shows that the $5,500 was paid out on the debts due by Ben S. Dupoyster's estate, and that the appellant, who is the wife of J. C. Dupoyster, never received any part of the purchase money paid to J. C. Dupoyster individually or as administrator, and that she never consented that such payments should be made to her husband, or that the deed might be recorded. The court decreed, at the instance of the appellee, that the contract of sale should be rescinded, and that it was entitled to a lien upon one-half of the land, being J. C. Dupoyster's three-eighths and the appellant's one-eighth interest in the land. From this judgment this appeal is prosecuted.

We will first consider the question as to J. C. Dupoyster's three-eighths interest. The deed which he executed to the appellant August 14, 1889, was not recorded until 12 years after the sale to the appellee; therefore was not on record when the sale was made. We have reached the conclusion that the appellee's agents were not aware of the existence of the deed at the time of the sale to it, and that three-eighths of the land should be treated as the property of J. C. Dupoyster for the propose of an equitable adjustment on the rescission of the contract between ...

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3 cases
  • Dupoyster v. Ft. Jefferson Imp. Co.'s Receiver
    • United States
    • Kentucky Court of Appeals
    • November 28, 1905
  • Dupoyster, &C. v. Fort Jefferson Improvement Co.
    • United States
    • Kentucky Court of Appeals
    • May 11, 1904
    ...118 Ky. 196 ... Dupoyster, &c ... Fort Jefferson Imp. Co ... Court of Appeals of Kentucky ... May 11, 1904 ...         APPEAL FROM BALLARD CIRCUIT COURT — W. I. CLARK, SPECIAL JUDGE ...         FROM THE JUDGMENT DEFENDANT APPEALS. REVERSED ...         JOHN W. RAY AND WHITE & RAY, FOR APPELLANT ...         F. H ... ...
  • Graham v. Magann Fawke Lumber Co.
    • United States
    • Kentucky Court of Appeals
    • May 11, 1904

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