Hoover v. Dudley

• Decision Date: 19 February 1929
• Citation: 228 Ky. 110,14 S.W.2d 410
• Parties: HOOVER et al. v. DUDLEY et al.
• Court: Kentucky Court of Appeals

14 S.W.2d 410

228 Ky. 110

HOOVER et al. v. DUDLEY et al.

Court of Appeals of Kentucky

February 19, 1929

Appeal from Circuit Court, Floyd County.

Action by Daisy Dudley and others against Louisa Hoover and others to have set aside a judgment rendered. From the judgment defendants appeal. Reversed.

Edward L. Allen, A. J. May, and Joseph D. Harkins, all of Prestonsburg, and Turner & Creal, of Frankfort, for appellants.

J. C Hopkins and James & Hobson, all of Prestonsburg, for appellees.

STANLEY C.

On August 16, 1913, Louisa Hoover and husband conveyed to Daisy Dudley a tract of 100 acres in Floyd county. Louisa Hoover did not own the coal under the land, as her vendor had excluded from the conveyance all the minerals with the exception of the oil and gas; it appearing that he had theretofore conveyed such minerals to another. The exception in the Hoover deed to Mrs. Dudley was in the language "Excluding the, all the mineral on said land, excluding all the timber that belongs to Epperson Hayes."

On January 2, 1915, Daisy Dudley and husband executed an oil and gas lease on this land, which came into the ownership of the Keystone Gas Company on February 1, 1917. There being some doubt whether Mrs. Dudley owned the oil and gas by reason of the exception contained in her deed from Louisa Hoover, on April 20, 1921, at the instance, as it would appear, of the Keystone Gas Company, Ballard Dudley, husband of Daisy Dudley, went to the husband of Louisa Hoover, and, according to the latter's version, asked him to make a new deed to take the place of the original deed of August 16, 1913, saying that it had been lost. The Hoovers agreed to execute a new deed. According to Dudley's version, he stated to Hoover that there was some doubt about the construction of the original deed, and, as it had become torn, he wanted a new deed to remove the doubt and at the same time replace the torn instrument. He says Hoover readily agreed that it was the original intention to convey the gas and oil rights along with the surface. Later in the day Dudley and some representative of the Keystone Gas Company went to the Hoover house, and Louisa Hoover and her husband signed the new deed. The Hoovers say it was not read over to them, and its contents were misrepresented. Dudley claims that it was read, and that they knew it contained a clause referring to the doubtful construction of the original deed and clarifying it by making a specific conveyance of the oil and gas. A few days later, Dudley returned with a deputy county court clerk to take the acknowledgments of Hoover and his wife. Hoover claims that he then read the deed and saw that it conveyed the oil and gas contrary to his intention, and he thereupon ran a line through the names of his wife and himself and refused to acknowledge the deed.

This paper was, however, proved by the oaths of two witnesses who saw Hoover and his wife sign their names, and it was placed on record. Within a few days thereafter Louisa Hoover and her husband filed a suit in the Floyd circuit court seeking to have this deed set aside, and asking that their title to the oil and gas be quieted. Mrs. Dudley was duly served with process on June 3, 1921, and employed Hon. J. C. Hopkins to represent her. On August 1, 1921, Mr. Hopkins entered a motion in the action and filed a demurrer to the petition. These being overruled, by orders of court the defendant was given until October 18, 1921, in which to file answer. On October 19, 1921, a judgment was entered reciting in detail the proceedings, and, that case having been submitted upon the pleadings and exhibits without answer being filed, judgment was rendered against Daisy Dudley setting aside the deed of April 20, 1921, and adjudging that Louisa Hoover was the owner of the gas and oil rights in the 100 acres.

It appears that on June 6, 1921, while this action was pending, Louisa Hoover and her husband executed a lease to the Kentucky Coke Company of the oil and gas, and granting certain other rights incident to the production thereof, in the 100-acre tract of land. And a month before judgment was entered, to wit, on September 19, 1921, Daisy Dudley executed a contract with the Kentucky Coke Company in which it is recited that, whereas the company under its lease from the Hoovers had acquired certain rights of way, privileges, and easements in and over the land for the production of oil and gas and was about to enter thereon for the purpose of operations under its lease from the Hoovers, she accepted and agreed to accept $300 a year in advance for each well drilled upon the property and the right to use gas for heating and lighting two dwelling houses as full payment and satisfaction of damages by reason of such entrance upon her property.

Some time during the pendency of this action, suit was filed in the United States District Court for the Eastern District of Kentucky by the Keystone Gas Company, lessee of the Dudleys, against the Kentucky Coke Company, lessee of the Hoovers, to have determined the ownership of the oil and gas rights in this land. Neither the Dudleys nor Hoovers were made parties to that suit; nor were these companies made parties to the action in the Floyd circuit court. The District Court rendered judgment in favor of the Keystone Gas Company, and, upon an appeal to the United States Circuit Court of Appeals, that judgment was affirmed on February 15, 1924, as reported in the opinion of Kentucky Coke Co. v. Keystone Gas Co. (C. C. A.) 296 F. 320. A writ of certiorari was denied by the Supreme Court. 266 U.S. 605, 45 S.Ct. 92, 69 L.Ed. 464.

After the decision of the United States Circuit Court of Appeals, to wit, on March 14, 1924, a suit was instituted by Daisy Dudley against Louisa Hoover seeking to have set aside the judgment rendered on October 19, 1921, "for fraud practiced by the successful party in obtaining the judgment"; that is, under subsection 4 of section 518 of the Code. The petition recites the substance of the proceedings above stated, and alleges:

That after the filing of the suit, she employed an attorney to make defense for her, but, before her attorney had prepared or filed her...