Hellard v. Rockcastle Mining, &C., Co.
| Decision Date | 21 March 1913 |
| Citation | 153 Ky. 259 |
| Parties | Hellard, et al. v. Rockcastle Mining, Lumber & Oil Co. |
| Court | Kentucky Court of Appeals |
Appeal from Jackson Circuit Court.
A. W. BAKER for appellants.
C. C. WILLIAMS and J. R. LLEWELLYN for appellee.
The appellants brought this suit as the children and heirs of John and Martha Hellard, to recover three tracts of land in Jackson county, containing about 300 acres. The record shows that in 1868 John Hellard owned the land in question and that he occupied it with his family, consisting of his wife and six children, five of whom are the appellants in this action. In 1868, Martha sued John for a divorce and alimony in the Jackson Circuit Court. The divorce suit was compromised by a written agreement signed by John Hellard and Martha Hellard on January 28, 1868, whereby John Hellard agreed that Martha was to have all the lands, absolutely (supposed to contain about 350 acres, Martha then having all the patents for same), and certain specified personal property. She was also to have possession and control of the children. This agreement bore the caption of the case of Martha Hellard v. John Hellard in the Jackson Circuit Court, and concluded with this sentence:
"The parties consent that this be entered as the decree of the court in this suit."
The agreement was filed in the action and bears this endorsement:
J. M. Wood was clerk of the Jackson Circuit Court. At the same term of the court, and on motion of the plaintiff, the action was submitted for trial and two days later the circuit court judge made upon the minute book, which he signed, this entry:
"Judgment to be entered by clerk on order book." No further order was ever entered in the case, but there was found among the papers a formal and complete judgment in the handwriting of the penman who drafted the petition, granting the plaintiff a divorce and carrying out the provisions of the written agreement which had theretofore been filed in the case. This judgment, however, was never entered or signed by the judge and bears no endorsement of any kind.
Martha Hellard was re-married to Milton Martin in 1869, and John Hellard was re-married to Elizabanna Angel in 1881. Martha Hellard and her family continued to live upon the farm some three years after her marriage to Martin, when she and Martin left the farm in the possession of the children. In 1882, Martin having died in the meantime, Martha sold the land to Colton; Colton sold it to West in 1887, and he in turn sold it to the appellee, Rockcastle Mining, Lumber & Oil Company, in 1889. John Hellard died in 1898, and Martha, his former wife, died in 1906. In 1912, this action was brought by the surviving five children of John and Martha Hellard to cancel the conveyance from their mother Martha to Colton and the subsequent conveyances from Colton and West; and they further asked that they be adjudged the owners of the land in question.
The proceedings in the divorce case did not dissolve the relation of husband and wife existing between John and Martha Hellard; and as he did not join in her deed to Colton, that deed was void and of no effect. Weber v. Tanner, 23 Ky. L. R. 1107, 64 S. W. 741; Ky. Stave Co. v. Page, 125 S. W. 172. While it may be said that the effect of the written agreement, which was signed and filed in the divorce suit as a basis for a subsequent judgment to be entered fixing their property rights, vested Martha Hellard with the equitable title to the lands, it did not divest John Hellard of his legal title; and that being true, his wife's conveyance without his joining therein was void as to her.
Appellee answered relying upon its deed and adverse possession for fifteen years, and for thirty years to a well defined boundary, to defeat appellant's claim. Proof was taken and upon a trial the court dismissed the petition; and from that judgment the children prosecute this appeal.
Appellants claim title as the heirs of both their father and mother, insisting that the agreement filed in the divorce case did not divest their father of title and that their mother's deed...
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