Howard v. Sebastian

• Decision Date: 19 April 1911
• Citation: 143 Ky. 237,136 S.W. 226
• Parties: HOWARD v. SEBASTIAN et al.
• Court: Kentucky Court of Appeals

136 S.W. 226

143 Ky. 237

HOWARD v. SEBASTIAN et al.

Court of Appeals of Kentucky.

April 19, 1911

Appeal from Circuit Court, Morgan County.

Action by Sylvester Howard against J. M. Sebastian and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Byrd &amp Howard, for appellant.

CLAY C.

Appellant Sylvester Howard brought this action against appellees, J. M Sebastian, Nannie Sebastian, his wife, and their infant children, Bessie and Pearl Sebastian, to quiet his title to a certain tract of land situated in Morgan County, Ky. The trial court denied appellant the relief prayed for; hence this appeal.

It appears from the pleadings and proof that appellant purchased the land in question from J. M. Sebastian and Nannie Sebastian by deed with covenant of general warranty, dated December 1, 1903. The purchase price was $1,485, all of which has been paid. The caption of the deed under which Nannie Sebastian acquired title is as follows: "This deed of conveyance made and entered into this 6th day of May, 1903 between J. L. Brown and Mary E. Brown, his wife, parties of the first part, and Nannie Sebastian and her heirs by J. M Sebastian, parties of the second part." The granting clause is: "To the parties of the second part, their heirs and assigns forever." The habendum is as follows: "To have and to hold the same together with all appurtenances thereunto belonging unto the parties of the second part, their heirs and assigns forever," etc.

After the conveyance from Nannie Sebastian and her husband to appellant, they took the purchase money received from appellant and invested it in another tract of land located in Magoffin county, Ky. The title to this tract was conveyed in the same way as the title acquired under the deed of May 6, 1903, from J. L. Brown and wife. The grantors in the latter deed, which was dated December 8, 1903, were Farrish Arnett and Belle Arnett, his wife. The consideration was $1,000. On February 4, 1905, Nannie Sebastian and her husband exchanged the tract so purchased for a tract of land upon which they now reside, and which they obtained from J. L. Brown and Mary E. Brown, his wife, Rebecca A. Brown, and Myrtle Coffee. In the latter deed the title was also conveyed to Nannie Sebastian and her heirs by her husband, J. M. Sebastian.

The proof shows that each of these tracts (that is, the one obtained from Arnett and wife and the one for which that tract was exchanged) is worth as much as, if not more than the tract in controversy. It further appears from the deposition of J. M. Sebastian that his wife, Nannie Sebastian, had previously given to two children by her former husband their part of her estate, and that the conveyance of May 6, 1903, from J. L. Brown and Mary E. Brown was prepared, in the manner hereinbefore indicated, so as to exclude the children by her...