Hunt v. Hunt

• Decision Date: 18 September 1913
• Citation: 159 S.W. 528,154 Ky. 679
• Parties: HUNT et al. v. HUNT et al.
• Court: Kentucky Court of Appeals

159 S.W. 528

154 Ky. 679

HUNT et al. v. HUNT et al.

Court of Appeals of Kentucky.

September 18, 1913

Appeal from Circuit Court, Pike County.

Suit by John Nelson Hunt and others against Tabitha Jane Hunt and others. From a judgment for defendants, the plaintiffs appeal. Reversed, with directions.

R. H Cooper, J. M. Roberson, and Stratton & Stephenson, all of Pikeville, and C. M. Whitt, of Williamson, W. Va., for appellants.

Roscoe Vanover, and York & Johnson, all of Pikeville, and Hager &amp Stewart, of Ashland, for appellees.

CARROLL J.

The only question in this case is the proper construction of the following deed:

"This indenture made and entered into this 28th day of July, 1869, by and between Jesse Phillips and Nancy Phillips, his wife, of the county of Pike and state of Kentucky, of the first part, and Harrison Fields of the county and state aforesaid, of the second part, witnesseth: That the party of the first part, for and in consideration of the love and affection they have for their daughter, Tabitha J. Fields, and the sum of five dollars, to us in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, aliened, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, convey and confirm unto Harrison Fields, the party of the second part, his heirs and assigns forever; also his wife's two first children shall be equal heirs with her other heirs; the party of the first part shall use the lands about to be conveyed for grazing lands; a certain tract or boundary of land on Johns Creek and bounded as follows. *** To have and to hold the same with all the appurtenances thereon to Harrison Fields, the party of the second part, his heirs and assigns forever, with covenant to warrant and defend against his heirs, assigns executors and administrators."

Tabitha Jane Fields, the wife of Harrison Fields, had, at the time of the execution of the deed, two living children, the issue of a former marriage, and one child, the issue of her marriage with Fields. One of the children of the first marriage married Frank Hunt, and afterwards died, leaving surviving her five children, who after the death of Harrison Fields brought this suit, asserting that they were entitled to an undivided one-third interest in the tract of land described in the deed.

The lower court, as appears from the briefs of counsel, was of the opinion that Harrison Fields took a fee in the land described in the deed, and dismissed the petition of the plaintiffs, who thereupon prosecuted this appeal.

It is argued in their behalf that it was the intention of Jesse Phillips and his wife, grantors in the deed, to convey the land to Harrison Fields for the use and benefit of himself and wife for life, with remainder to all of the children of his wife; or, if not, that it was their intention to convey the land to Fields, to be held by him in trust for the children. As illustrating that...