Jeffries v. Butler

• Decision Date: 23 May 1900
• Parties: JEFFRIES et al. v. BUTLER. [1]
• Court: Kentucky Court of Appeals

56 S.W. 979

108 Ky. 531

JEFFRIES et al. v. BUTLER. ^[1]

Court of Appeals of Kentucky.

May 23, 1900

Appeal from circuit court, Green county.

"To be officially reported."

Action by John G. Jeffries and others against W. G. Butler to recover land. Judgment for defendant, and plaintiffs appeal. Reversed.

B. W Penick, for appellants.

D. T Towles and Garnett & Garnett, for appellee.

WHITE J.

In 1855, Josiah Jeffries, grandfather of appellants, made and executed a deed of gift to his four daughters, by name, to certain lands in Green county. The granting clause of the deed reads: "That the said party of the first part hath for and in consideration of natural love and affection for his said children, parties of the second part, granted and given, and do by these presents grant, give, and convey, unto the said parties of the second part, the following property." The habendum clause of the deed reads "To have and to hold the property hereby conveyed to the only proper use and benefit of the said parties of the second part during their natural lives, and remainder in fee to their legal issue. The said property is not, in any event, to be subject to the control of the husbands of the said parties of the second part or either of them, but the same is given to the parties of the second part for their separate use and benefit; and, should any one or more of the said parties of the second part die without issue, the survivors shall have and enjoy the use of said property during their natural lives; but, in the event that one of the said parties should die leaving legal children, the children of such a one is to have her share of said property; and at the death of all the said parties of the second part the said property is to be equally divided among their legal issue, or the issue of such as may leave children," with a reservation in the grantor of the right of control till the second parties arrive at the age of 21 years. In 1861, and after the death of Josiah Jeffries, there was a partition had of the lands among the four daughters, and the deeds made accordingly by a commissioner of the county court. The appellants are the children of Melvina Jeffries, daughter of Josiah Jeffries, named in the deed as Melvina Slinker, widow, and who it is alleged afterwards married W. A. Jeffries. After the deed of partition was made to Melvina for 66 2/3 acres of the land, she, with her husband, sold and conveyed the land to Patterson Jeffries, in July, 1867, and the same land was sold and conveyed by Patterson Jeffries and wife to appellee in 1867, by deed in fee, and with clause of general warranty. Melvina Jeffries, mother of appellants, died March 9, 1893. In November, 1897, this action in ejectment is brought to recover 50 acres described as being a part of the 66 2/3 acres allotted to Melvina in the division, and being a part of the land deeded to Patterson Jeffries, and from him to appellee in 1867. Appellee answered, and denied that appellants, under the deed of their grandfather Josiah Jeffries, derived any title, but alleged that under that deed a fee title passed to each of the four daughters named therein as grantees. The suit for division and deed thereunder was also pleaded in bar, and finally pleaded the statute of 3, 15, and 30 years as a bar to a recovery. The issues arising were tried by the court without a jury, and the court finds that, under the deed of 1855 of Josiah Jeffries, the mother of appellants received title in fee, and also found that the action, if any existed, was barred by time, and rendered judgment dismissing appellants' petition absolutely, and from that judgment this appeal is prosecuted.

We are of opinion from the deed, as copied supra, that it is clear that Josiah Jeffries intended to give to his daughters named therein only a life estate, remainder in fee to their children. This being clear and unmistakable from the habendum clause in the deed, on the authority of ...