Gardner v. Pace

• Decision Date: 08 June 1889
• Citation: 11 S.W. 779
• Parties: GARDNER v. PACE et al.
• Court: Kentucky Court of Appeals

11 S.W. 779

GARDNER v. PACE et al.

Court of Appeals of Kentucky.

June 8, 1889

Appeal from circuit court, La Rue county; W. E. RUSSELL, Judge.

"Not to be officially reported."

Action to recover land by Louisa and James Pace against Thomas Gardner. Judgment for plaintiffs, and defendant appeals.

I. W Twyman, for appellant.

D. H Smith, for appellees.

PRYOR J.

Heth Gardner died in the year 1839, the owner of a tract of 240 acres of land in the county of La Rue, and left surviving him 10 children and his widow. His widow died in the year 1859 and it seems that the land had not been allotted to the children, and in fact the record shows that no division of the land has ever been made. Two of the children of the decedent died in infancy, and their interest passed to their brothers and sisters. One of the daughters, who is the appellee in the present case, absconded with a married man by the name of Pace some time in 1859, leaving the state, and not returning perhaps until this action was instituted, in 1884, and now claims to have been married to Pace after he had obtained a divorce from his wife he had abandoned in this state. Prior to her elopement with Pace she sold and conveyed to one Thurman her interest in the tract of land left by her father for the consideration of $125. That deed conveys to the party of the second part forever "all of her undivided interest which she has, or may hereafter have," in the land, describing it with this additional clause: "And the interest I hereby sell and convey is my interest as one of the children of the said Heth and Ann Gardner, which I warrant against the claim of all others said interest in said tract of land." Thurman after this sold this interest to Walters, and Walters to Patterson, and Patterson to the appellant, Thomas Gardner, who is a brother of the appellee. Thomas Gardner, it seems, has been in the actual occupancy of this land all the time, and no division was ever made. He claims that under the deed to Thurman the latter acquired all the title the appellee had, or might thereafter have, and that the conveyances down to him passed all the interest acquired by Thurman. It is manifest that the language of the deed is not susceptible of such a construction. The land had not then been divided, and it was to show that whatever interest she had or might have thereafter, by reason of a division, should pass to the purchaser, and to express in plain language what was sold. It is said in the deed that the interest sold "is my interest as one of the children." What was that interest? It was her interest, and that she...