Ison v. Ison

• Decision Date: 25 March 1938
• Citation: 272 Ky. 836,115 S.W.2d 330
• Parties: ISON v. ISON et al.
• Court: Kentucky Court of Appeals

115 S.W.2d 330

272 Ky. 836

ISON v. ISON et al.

Court of Appeals of Kentucky

March 25, 1938

Appeal from Circuit Court, Carter County.

Suit in equity to establish title to realty by Lance Ison against Belle T. Ison and another. From a judgment dismissing the petition and quieting title in defendant, plaintiff appeals.

Reversed.

H. R Wilhoit, of Grayson, for appellant.

Thos S. Yates and John S. DeHart, both of Grayson, for appellees.

STANLEY Commissioner.

Lance Ison alleged in his petition in equity that he had purchased a certain tract of land for $375 at a decretal sale, and at the request of his 80 year old grandmother, Mrs. Belle T Ison, the defendant, he had had the property conveyed to her with the agreement that she should hold the title as his trustee; that he should have the use and benefit of the property; and that she would convey the title to him before her death. The petition averred that Mrs. Ison had attempted to convey the property to John Ison, her codefendant, and that both of them were attempting to evict the plaintiff and claiming title in John Ison. The pleading set forth conjunctively what the parties had done, when and how. The answer denied all these allegations conjunctively. It also set up affirmative defenses upon which issue was joined by a reply. Upon oral evidence, the chancellor dismissed the petition and quieted Mrs. Ison's title. The plaintiff appeals, but he has not brought up the evidence.

Appellant insists that he is entitled to a reversal of the judgment because the traverse of the allegations of his petition was a negative pregnant and for that reason did not make any material issue. The plaintiff raised the question by demurrer and later by a motion to strike the defective denials, but the trial court overruled him. Ordinarily a negative pregnant does not make a material issue. Thus, where a number of facts are alleged connectively, and the answer denies them in the same conjunctive form, the denial admits the separate existence of each fact or goes only to certain facts and admits others. Another illustration is that, where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, it is held that only the qualification or modification is denied, while the fact itself is admitted. 49 C.J. 269, 271; Gahren, Dodge & Maltby v. Farmers' Bank of Estill County, 156 Ky. 717, 161 S.W. 1127; White v. City of Williamsburg, 213 Ky. 90, 280 S.W.

486; State Bank of Stearns v. Stephens, 265 Ky. 615, 97 S.W.2d 553. The court should have sustained the demurrer to the answer and permitted its reformation. But, though the plaintiff did all that he could to get rid of the bad answer the case went to trial upon the issues and the defective pleading was cured by the judgment. Brooks v. City of Maysville, 151 Ky. 707, 152 S.W. 788; Donoho v. Rawleigh, 230 Ky. 11, 18 S.W.2d 311, 69 A.L.R. 1135. There is another reason for disallowing this ground for reversal. The answer set up an affirmative defense which would prevent us from saying, in the absence of the...