Eversole v. Webb

• Decision Date: 02 November 1951
• Citation: 243 S.W.2d 490
• Parties: EVERSOLE et al. v. WEBB et al.
• Court: Supreme Court of Kentucky

Page 490

243 S.W.2d 490

EVERSOLE et al. v. WEBB et al.

Court of Appeals of Kentucky.

Nov. 2, 1951.

Luker & Tooms and J. Milton Luker, all of London, for appellant.

J. R. Llewellyn, McKee, for appellee.

STEWART, Justice.

This suit was instituted in the Jackson Circuit Court by the widow and heirs-at-law of Preston Eversole against the widow and heirs-at-law of Rowland Eversole to cancel a deed to a 60-acre tract of land in Jackson County executed and delivered by Preston Eversole and Martha Eversole, his wife, to their son, Rowland Eversole, and the latter's wife, Zadie Eversole, on November 14, 1935. Cancellation is sought on the ground that the consideration expressed in the deed has not been complied with and performed. The Chancellor dismissed plaintiffs' petition and they appeal.

The deed, which was never recorded, has been destroyed. Appellants contend that the consideration was the agreement of the grantees to move on the land conveyed to them, provide a home for the grantors, maintain them and pay their doctors' bills during their lifetime. Appellees insist that the consideration was a stipulation in the instrument to the effect that the grantees should furnish maintenance to and pay the doctors' bills of the grantors during their lifetime. The deed contained no reversionary clause.

The testimony produced at the trial, wholly in the form of depositions, is voluminous and somewhat conflicting. However, we believe it unnecessary to review the evidence at length, since we are of the opinion that certain undisputed facts control the result in the case at bar.

Preston Eversole, one of the grantors, died on June 29, 1939, and appellees alleged in their answer that up until the date of his death he had brought no suit to cancel the deed on the ground that there had been a failure of consideration on the part of the grantees; therefore, they argue first that no right of action survived or descended to Preston Eversole's heirs-at-law to maintain an action to void the deed as to the one-half interest in the land once owned by this decedent.

Rowland Eversole died on November 24, 1942, survived by four children and his widow who later married one John M. Webb, so that the widow's name is now Zadie Eversole Webb. Martha Eversole, at a date not definitely established in the record, obtained possession of the deed in controversy and tore it up. Then on November 10, 1947, Martha Eversole conveyed a one-half interest in the land to her daughter, Emma Price. Zadie Eversole Webb and her children filed suit four days later as plaintiffs in the Jackson Circuit Court against Martha Eversole and Emma Price attacking this deed and seeking a cancellation of it. The Chancellor on June 28, 1948, set aside and adjudged void the deed to Emma Price, thereby upholding the conveyance to Rowland Eversole and Zadie Eversole on November 14, 1935. Appellees also averred in their answer and next maintain that the judgment of June 28, 1948, is res judicata as to the issue raised in this litigation by Martha Eversole and her daughter, Emma Price.

Appellants in their brief make no responsive argument to the first contention of appellees. We think the viewpoint of appellees on this issue is well taken. It is an established principle of law that a conveyance from a parent to a child, in consideration of the support of the former by the latter, cannot be inquired into by the other children after the death of the parent in the absence of any complaint by them or by the parent during the latter's lifetime. See Bradford v. Kirby, 2 Ky.Op. 587; Hensley v. Hensley, 30 S.W. 613, 17 Ky.Law Rep. 122. The proof is clear that Preston Eversole and appellants acquiesced in the status quo of the...