Jacoby v. Nichols

• Decision Date: 01 May 1901
• Citation: 62 S.W. 734
• Parties: JACOBY et al. v. NICHOLS et al. [1]
• Court: Kentucky Court of Appeals

62 S.W. 734

JACOBY et al. v. NICHOLS et al. ^[1]

Court of Appeals of Kentucky.

May 1, 1901

Appeal from circuit court, Henry county.

"Not to be officially reported."

Action by Sophia Nichols and Mrs. Elizabeth Hall against Matt. O'Bryant and others for the sale of land and distribution of proceeds. Judgment denying claim of Melissa Jacoby and Ida Moore to the land in controversy, and they appeal. Reversed.

W. W Turner and W. B. Moody, for appellants.

John D Carroll, for appellees.

HOBSON J.

This case involves a controversy between the heirs of E. P O'Bryant and the heirs of his wife, Adaline O'Bryant, as to the title to a tract of land on which he resided at his death, on January 5, 1877, and which she held from that time up to her death, on September 13, 1897. The entire controversy turns on the proper construction of the deed for the land. Appellees contend that E. P. O'Bryant took under the deed the entire title in fee simple. Appellants contend that at his death his wife, Adaline, surviving him, took under the deed the title in fee, and that she held after his death as owner of the land under the deed. The proper construction of the deed is the only question to be determined on the appeal. The deed reads as follows:

"This indenture, made and entered into this 6th day of January, 1873, by and between David Claxton and Amanda T., his wife, of the county of Henry and state of Kentucky, of the first part, and E. P. O'Bryant, of the same county and state, of the second part, witnesseth: That for and in consideration of the sum of thirteen hundred and seventy-five dollars ($1,375.00), to be paid as follows, viz.: $687.50 paid the first of January, 1871, and $687.50 to be paid the first of January, 1872, and bearing six per cent. from date, from January 1st, 1871, until paid, the receipt whereof is hereby fully acknowledged,--have, and by these presents do, grant, bargain, sell, and convey unto the said O'Bryant a certain tract or parcel of land lying and being in Henry county and state of Kentucky, on the waters of Sixmile creek, and bounded as follows, to wit [here follows description of land], containing, by survey, fifty acres, together with all its appurtenances thereunto belonging forever. To have and to hold the land hereby sold unto the said O'Bryant, and his heirs and assigns, forever, free from the claim or claims of the said David Claxton and wife, and their heirs and assigns, also, forever. And the said David Claxton and wife do covenant and agree with the said O'Bryant that they will forever warrant and defend the title to said land against the claim or claims of all and every person whatsoever, and a lien is hereby retained to secure the said Claxton for the balance of the purchase money.

"Now, in consideration of the natural love and esteem I have for my beloved and affectionate wife, Adaline O'Bryant, I give and bequeath unto her the farm herein mentioned and described, for her own benefit and behoof, after the death of the said E. P. O'Bryant, and the said farm is to be appropriated to pay off any of the said O'Bryant's debts after his death; but should the said E. P. O'Bryant outlive his wife, Adaline O'Bryant, then this gift is to be made null and void, otherwise to remain in full force and virtue.

"In testimony whereof, the parties of the first part have hereunto set their hands and seals this day and date first above written.

"Amanda T. Claxton.

"D. H. Claxton."

A paper that cannot operate as a will will be given effect as a deed if it can be fairly done. Among the rules for the interpretation of contracts are the following: "The rule most conspicuous and wide-reaching of all is that a written contract shall be so interpreted as, if possible, to carry out what the parties meant." Bish. Cont. § 380. "No inaccuracy of language, whether from false grammar, from employing a word in a wrong...