Goff v. Goff

• Decision Date: 03 December 1918
• Citation: 206 S.W. 466,182 Ky. 323
• Parties: GOFF ET AL. v. GOFF.
• Court: Kentucky Court of Appeals

206 S.W. 466

182 Ky. 323

GOFF ET AL. v. GOFF.

Court of Appeals of Kentucky.

December 3, 1918

Appeal from Circuit Court, Pike County.

Consolidated suits by A. J. Goff against Paris Goff and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded with directions.

Stratton & Stephenson, W. W. Barrett, W. P. Hughes, and O. A. Stump all of Pikeville, for appellants.

Cline &amp Steele, of Pikeville, for appellee.

CLAY C.

A. J. Goff, a son of Martin Goff, deceased, brought three separate suits against his brothers, Paris Goff, Ellison Goff, and Edward Goff, to cancel three deeds made to them by their father on the ground of mental incapacity, fraud, and undue influence. The suits were consolidated, and on final hearing the deeds were canceled. The defendants appeal.

The deed to Paris Goff was executed on November 14, 1904, while the deeds to Ellison Goff were executed on February 24, 1905. Martin Goff died in the month of November, 1914. The three suits were brought on November 4, 1915, or more than ten years after the execution of each of the deeds. The defendants pleaded the ten-year statute of limitation, which by agreement of the parties was traversed of record. The only ground urged for the reversal is the failure of the chancellor to give proper effect to the plea of limitation. The ten-year statute applies, and was pleaded by amended answer, but plaintiff insists that the evidence was sufficient to show such unsoundness of mind on the part of the grantor as to suspend the runing of the statute. This contention cannot be sustained. In the first place, any disability that avoids the running of the statute is new matter, and must be pleaded in order to enable the opposing party to meet the issue. Smith v. Cox's Committee, 156 Ky. 118, 160 S.W. 786. Here the plea of limitation was merely traversed of record. This was equivalent to a mere denial that the cause of action had accrued more than ten years before the filing of the suits. This was not sufficient to raise the issue of disability or to authorize the court to hear and consider the evidence bearing on that question. But even if we pass that question and consider the evidence, as plaintiff contends we should because the amended answer was tendered after the evidence was taken and was permitted to be filed with the understanding that it should be traversed of record, and plaintiff's counsel was under the impression that...