Justice v. May

• Decision Date: 01 June 1917
• Citation: 176 Ky. 78,195 S.W. 98
• Parties: JUSTICE ET AL. v. MAY ET AL.
• Court: Kentucky Court of Appeals

195 S.W. 98

176 Ky. 78

JUSTICE ET AL. v. MAY ET AL.

Court of Appeals of Kentucky.

June 1, 1917

Appeal from Circuit Court, Pike County.

Action by Polly May and others against A. E. Justice and others. From the judgment, defendants appeal, and plaintiffs prosecute a cross-appeal. Affirmed on appeal; reversed and remanded on cross-appeal.

See also, 148 Ky. 696, 147 S.W. 409.

J. M Roberson and R. H. Cooper, both of Pikeville, J. M. York, of Catlettsburg, and J. R. Johnson, Jr., of Pikeville, for appellants.

Stratton & Stephenson, of Pikeville, for appellees.

CLAY C.

On October 6, 1879, Abner Justice, Sr., conveyed to his daughter, Nancy J. Justice, a tract of land on Hurricane creek in Pike county. At the same time he conveyed to his son, Abner Justice, Jr., a tract of land on Sandy river. Each deed provided that it was not to take effect until after the death of the grantor and his wife. Thereafter Abner Justice Jr., and his sister, Nancy J. Justice, swapped lands; he conveying to Nancy the river tract, while she conveyed to him, by deed of general warranty, the tract on Hurricane creek. When the swap was made, both Nancy and Abner, Jr believed that she had a fee-simple title to the tract which she conveyed to Abner, Jr. Nancy, who married Joseph May in the year 1886, died in the year 1893, leaving four children. In the year 1911, her children brought this suit against A. E. Justice (Abner Justice, Jr.) and Mason Coal & Coke Company to recover the land on Hurricane creek and the value of the timber removed therefrom, on the ground that the deed from Abner Justice, Sr., to their mother, Nancy, conveyed to her only a life estate, with remainder to them. The trial court held that Nancy owned a fee in the property and sustained a demurrer to the petition. On appeal, it was held that she took only a life estate, and the judgment was reversed for further proceedings consistent with the opinion. May et al. v. Justice et al., 148 Ky. 696, 147 S.W. 409. On the return of the case, the defendants, besides other defenses, interposed a plea of estoppel and set up a claim for improvements. The chancellor, after rejecting the claim for improvements and holding the plea of estoppel insufficient, held that plaintiffs were liable on their mother's warranty to the extent of the market value of the river farm, which A. E. Justice had conveyed to, and which they had inherited from, their mother, and fixed the market value of the farm at $1,500. He further fixed the market value of the timber which defendants cut and removed from the Hurricane creek farm at $3,750, but offset this sum against the value of the use of the mill on the river farm. He then rendered judgment in favor of plaintiff for the Hurricane creek farm, but gave defendants a lien thereon for $1,500, the market value of the river farm. Defendants appeal, and plaintiffs prosecute a cross-appeal.

It appears that two of the plaintiffs, after arriving at age sold their interest in the river farm to G. M. Justice and T. A. Justice, and that, in partition proceedings instituted by G. M. Justice and T. A. Justice, the other two plaintiffs were awarded their part of the river farm and have since taken possession thereof. Proceeding on the theory that the action by plaintiffs against the defendants was one for rescission, defendants claim that as plaintiffs have put it out of their power to restore the property which their mother acquired in the trade between her and A. E. Justice, they are estopped to recover the land on Hurricane creek. Manifestly, this contention is unsound. Plaintiffs were not parties to the transaction between their mother and A. E. Justice. Their mother, though having only a...