Hays v. Sturgill
|15 February 1946
|193 S.W.2d 648,302 Ky. 31
|HAYS et al. v. STURGILL et al.
|Kentucky Court of Appeals
Rehearing Denied April 30, 1946.
Appeal from Circuit Court, Knott County; Henry Stephens, Judge.
Action between Hattie Hays and others and Beckham Sturgill and others, to have deed annulled on ground of mental incapacity and undue influence or in alternative to have an enforceable precatory trust declared, wherein the defendants filed a counterclaim. From adverse judgment, Hattie Hays and others appeal.
Judgment affirmed in part and reversed in part.
Joe Hobson, of Prestonsburg, for appellants.
Combs & Combs, of Prestonsburg, for appellees.
The case raises questions of res adjudicata. Specifically, they are whether a judgment construing a deed with respect to the title it conveyed is a bar to a later action seeking (1) to have it annulled on the ground of mental incapacity and undue influence, and (2) to have an enforceable precatory trust declared.
The first suit was filed by all the heirs of Charles Sturgill except one, against a gas company and a son who refused to join as plaintiff, alleging title under a certain deed executed by their father and charging trespass by the gas company. It was pleaded in an amended petition that the deed conveyed the fee to the grantor's wife, the plaintiffs' mother, and that they had inherited the land from her. The prayer was that plaintiffs be adjudged the title and for an injunction and accounting. Two of those named as plaintiffs, Beckham Sturgill and Pearl Sturgill, had their names stricken as such and they were then made defendants. Issues were joined by an answer and on a counterclaim in which title was asserted by Beckham and Pearl Sturgill. A demurrer was sustained to the petition and overruled to the answer and counterclaim. The petition was dismissed when the plaintiffs declined to plead further. The opinion affirming the judgment was confined to the sole question of construction of the instrument, which was very crude. We held it to be a deed and not a will and to convey the fee in remainder to Beckham and Pearl Sturgill. Hays v. Kentucky-West Virginia Gas Co., 290 Ky. 174, 160 S.W.2d 376, 377.
Later the heirs, except the grantees and a grandchild, filed this action against the latter three, alleging, (1) that the deed was void because the grantor was of unsound mind and it had been executed through the undue influence of the two sons and (2) in the alternative, that under the terms of the deed the grantees were required to pay the other heirs certain proportionate parts of the value of the property under the theory of an enforceable precatory trust. Among the defenses and counterclaims the defendants pleaded the foregoing suit and another in bar. The court in effect sustained the defense and held the action barred, and the plaintiffs appeal.
We dispose quickly of the question of res adjudicata relating to the other suit mentioned and without describing it because that suit had been dismissed without prejudice. The voluntary discontinuance of a case by the plaintiffs without qualification and that it shall be without prejudice, which usually means without prejudice to the right to bring another suit or take further proceeding, does not have the effect of an adjudication on the merits and will not bar another action on the same subject matter. It remains res integra. Magill v. Mercantile Trust Co., 81 Ky. 129, 4 Ky.Law Rep. 927, 929; Edinger v. Miller, 295 Ky. 287, 174 S.W.2d 421. The general rule for determining a question res adjudicata embraces several conditions. The element primarily involved in this case is the question of identity of the two causes of action. The appellant denies identity and also claims that since the first case was decided upon demurrers, only the legal sufficiency of the facts pleaded was determined and not the merits of the case.
On the second point the rule is stated in Atkins' Guardian v. McCoy, 275 Ky. 117, 120 S.W.2d 1019, 1020, to be: 'A judgment on demurrer to a pleading is judicial determination of the legal sufficiency of the facts pleaded, and a final judgment on demurrer to a petition which goes to the merits renders the whole matter res judicata so far as the facts alleged are concerned, but is not a bar to another action where the facts are different and different questions of law are presented.'
The demurrers in the first case did reach the merits of the issues, namely, the construction of the instrument. There is no question of a technical defect or legal insufficiency of the pleading to present the merits, so if it may be said that the issue of fact and issue of law were the same the point is not well taken.
As we have said, only the construction of the writing was involved in the first case. Specifically, the issues were as to the character of the instrument, the identity of the grantees and the kind of title conveyed. As to whether those whom the court decided were granted the title took it subject to a trust in favor of the other heirs was a question not raised. It is now claimed that by the following provision in the deed the two grantees are required to pay the plaintiffs, as heirs of the grantor, their respective pro rata parts of eight-elevenths of the value of the land, namely: 'I want Pearl Sturgill to have the land where he now lives at our death and for Pearl to pay the rest of the heirs what he thinks is right at our death, and I want ...
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