Johnston v. Williams

• Decision Date: 27 April 1920
• Citation: 220 S.W. 1057,187 Ky. 764
• Parties: JOHNSTON ET AL. v. WILLIAMS ET UX. BRASWELL ET AL. v. WILLIAMS ET UX.
• Court: Kentucky Court of Appeals

220 S.W. 1057

187 Ky. 764

JOHNSTON ET AL. v. WILLIAMS ET UX.

BRASWELL ET AL. v. WILLIAMS ET UX.

Court of Appeals of Kentucky.

April 27, 1920

Appeals from Circuit Court, Allen County.

Action by J. B. Williams and wife against J. R. Johnston and others and against A. G. Braswell. From a judgment for plaintiffs defendants appeal, the appeal being consolidated with the appeal by A. G. Braswell and others, from a judgment for J B. Williams and wife in an action to set aside the first-mentioned judgment and to grant new trial. Affirmed on both appeals.

John H Gilliam, Francis R. Goad, and Gilliam & Gilliam, all of Scottsville, for appellants.

Sims, Rodes & Sims, and John B. Rodes, all of Bowling Green, for appellees.

HURT J.

These actions are between the same parties and have been heard and decided together. The first above-stated action was instituted by the appellees James B. Williams and his wife, P. A. Williams, against the appellants R. C. Huntsman, Harry Meredith, J. R. Johnston, and A. G. Braswell, and in which the appellees sought to have declared void an oil and gas lease which the appellants, or some of them, claimed to hold upon the lands of Williams, and to remove the cloud put upon the title to his land by reason of the existence and the claim of ownership to the lease by the appellants. Previous to the institution of this action on May 18, 1918, Williams had brought an action against J. R. Johnston and Harry Meredith, seeking relief touching the alleged lease upon his lands, as Johnston and Meredith were then claiming to hold a lease upon Williams' lands as assignees of R. C. Huntsman. In that action Williams asserted that he had executed a lease to R. C. Huntsman, which bore the date of March 13, 1916, and that the same had since been assigned to Johnston and Meredith, and that Huntsman had procured his execution of the lease by fraudulently representing to him, and pretendedly reading the lease to that effect, that the terms of the lease required the lessee to sink a well for oil or gas upon the lands within 12 months from the date of its execution, or, in default of drilling a well, to pay to the lessor a rental of 25 cents per acre before the expiration of the year following the execution of the lease, and, upon the failure of the lessee to either sink a well or to pay the rental within the year, the rights of the lessee under the lease terminated, but that the lease in fact did not contain the terms above stated, but provided that the lease might be kept in force by the lessee by the payment of a rental for each year for five years following the termination of the first year, and at any time during said years.

In the latter part of September, 1918, and while that action was yet undetermined, Williams was informed by Braswell that he had become the owner of the lease and exhibited a lease to Williams, which he represented was the lease which Williams had executed upon his lands to Huntsman. Braswell read a portion of the lease, which he exhibited to Williams, to him, and Williams claims that it was unlike the lease which he had given to Huntsman, and that it was also subscribed with his name and that of his wife, with purple ink, and that the signatures thereto were not in their handwritings. On February 1, 1919, Williams dismissed that action without prejudice to his right to bring a future action, and on March 13 following, he and his wife instituted the first above-styled case, averring that the appellants were claiming to hold a lease upon his lands for oil and gas purposes, but that the lease under which they were asserting title was not the act nor deed of either himself or his wife, and further averring that, if the appellants held a lease which had been executed by him, its execution had been procured by fraud, as averred in his first suit, and prayed for a judgment declaring the lease to be void. The appellants answered denying the averments of the petition and affirmatively alleging that Johnston and Braswell were the owners of the lease by assignment from Meredith, who was an assignee of Huntsman, and that the lease had been duly executed by Williams and his wife, and was then in full force and effect from their compliance with its terms, in offering to pay the rental provided in it which Williams had refused to receive. Johnston and Braswell also claimed to be in good faith purchasers of the lease for value, and without notice of any fraud or infirmity arising from its execution.

The original of the lease, under which Johnston and Braswell were claiming, was not exhibited in the first action brought by Williams and his wife, though that action was pending for nearly a year before its dismissal, nor was it produced or put in the record in the firststyled action, the appellants claiming that it was lost or mislaid; but a copy of the lease from the record of it in the office of the county court clerk was exhibited, from which it appeared to have been recorded on the 27th day of January, 1917, and bore a certificate of acknowledgment by Williams and his wife as having been made on the 8th day of January, 1917, before L. P. Huntsman, a deputy of the county court clerk. This purported copy of the lease did not contain the stipulations which Williams and his wife claimed that R. C. Huntsman represented to them that the one executed by Williams contained, touching the drilling of a well and the payment of the rental, but only required the lessee to pay the rental for each year succeeding the first after its execution in order to keep the lease in force. Williams is an illiterate man and unable to read and unable to write anything except his own signature.

It is very satisfactorily proven that Huntsman made the representations which the lessors claimed that he did as to the conditions which the lease contained, and that Williams was induced to sign the lease which he did execute, upon the faith of those representations; but it is not clear that the assignees of Huntsman had any knowledge of the fraud perpetrated upon Williams, when they purchased the assignment of the lease, but Braswell procured his interest in the lease while the first suit, brought by Williams, was pending, and Johnston knew that Williams was claiming that the lease had expired when he became the purchaser of a portion of his interest. The claim of Williams, however, is that the lease which Huntsman assigned to Meredith, and under which Johnston and Meredith now claim and assert their interests in his lands, and the one which was recorded was never executed by him, nor by his wife, and, if not, their right to escape liability upon it is not affected by the fact that the assignees of Huntsman were innocent purchasers, as they claimed to be. The lease which Williams admits executing was, as claimed by them, never either signed or acknowledged by his wife, and, as he claims, was subscribed by him with a lead pencil, and the terms and conditions contained in it were not the same as those embraced in the lease under which appellants claim title, or else that Huntsman fraudulently represented that it did contain such conditions, and induced him thereby to subscribe the lease; while the lease under which the appellants asserted title, in the first styled case, appeared to have been executed and acknowledged by both Williams and his wife, and their names appeared to have been subscribed thereto with ink, and, in addition to the signature of Williams, a deputy clerk, before whom the appellants claimed that it was acknowledged, deposed that the names of Williams and his wife were written in ink, and that Williams also signed the paper, in his presence, by mark, while Williams asserts that the names of himself and his wife were subscribed to the lease, which Braswell exhibited to him, with ink. The chancellor was of the opinion and so decided that the lease, under which the appellants are asserting title, was never executed by Williams nor his wife and adjudged it void, and this court is asked to reverse that judgment.

Before reciting the facts testified to by the witnesses, it is necessary to say that, while objections were made before the examiner as to the testimony of certain witnesses and certain portions of the testimony of others, the attention of the trial court was never called to these exceptions, and it was not requested to, nor did it, pass upon the exceptions and the objections, and the objections to the evidence will now have to be considered as having been waived, if in reality the objections were founded on any merit. Hatfield's Adm'r v. Hatfield, 166 Ky. 761, 179 S.W. 832; Lewis v. Wright, 3 Bush, 311; Bronston v. Bronston, 141 Ky. 639, 133 S.W. 548; Patterson v. Hensel, 4 Bush, 654; Fears v. United Loan & Deposit Bank, 172 Ky. 256, 189 S.W. 226; Williamson v. Justice, 174 Ky. 327, 192 S.W. 13.

Mrs Williams in her evidence deposed, emphatically, that she never at any time executed a lease to Huntsman, or acknowledged any such lease, though she testifies that at her home Huntsman sought a lease from her and her husband, which they declined to give, and in this she is corroborated by her husband and other members of her family, who testify that she neither subscribed nor acknowledged a lease at the time Huntsman claims that she did. Huntsman, who was engaged in securing leases and selling them to other parties, testified that he was at the home of the Williamses, who lived ten miles from Scottsville, the home of Huntsman, and while there Mrs. Williams subscribed and acknowledged a lease to him upon her husband's land, although the husband, who was present, was refusing to agree to the lease, and that she subscribed her name with pen and ink in his presence, and he left the lease with Williams, and, returning in a day...