Kiesewetter v. Kress

• Decision Date: 17 December 1902
• Citation: 70 S.W. 1065
• Parties: KIESEWETTER v. KRESS et al.
• Court: Kentucky Court of Appeals

70 S.W. 1065

KIESEWETTER v. KRESS et al.

Court of Appeals of Kentucky.

December 17, 1902

Appeal from circuit court, Kenton county.

"Not to be officially reported."

Action by Catherine Kiesewetter against Amelia Kress and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Byrne &amp Reed, for appellant.

R. C Simmons and H. C. Theissen, for appellees.

O'REAR J.

Michael Kress, on October 9, 1884, executed to appellant, his stepdaughter, the following note: "Two years after my death I bind my estate and personal representatives to pay to Catherine Kiesewetter, or order, one thousand dollars, for value received. This note secured by mortgage on real estate in Kenton county, Ky. and this note not to bear interest until my death, and thereafter at the rate of six per cent until paid." To secure the note above mentioned, the maker, Michael Kress, and his wife, Amelia Kress (appellee herein), executed and delivered to appellant a mortgage conveying to her a tract of 12.97 acres of land in Kenton county. Amelia Kress was the second wife of Michael. Michael Kress died August 17, 1893, and his executrix qualified under his will probated August 26, 1893. The widow continued to live with her two infant children upon this land for nearly two years, when she married Cornelius, and removed with her children to her husband's home. This suit was filed October 2, 1897, seeking the enforcement of the lien and the satisfaction of the note above named. The defenses were: (1) That appellant had not demanded payment of the note, verified by affidavit of the claimant, as required by law, within one year after the death of the testator, or within one year after the maturity of the note. (2) That the property mentioned was the homestead of the testator, and that he devised it as such to his widow and infant children. (3) That the note sued on by appellant was without consideration. To the first defense it was replied that there was no personal estate out of which the appellant's debt could have been paid, and that it was useless to have made the demand. The necessary purging affidavit was tendered with the amended petition. As to the second and third defenses it was replied that appellant had been the owner of the land before the execution of the mortgage, and that the mortgage really represented its purchase money, and therefore there could be no claim to homestead in the land as against it, and that, of course, was also a sufficient consideration. The rejoinder denied that appellant had ever been the owner of the land, but stated that Michael Kress, being involved in liability to appellee Amelia, who was not then his wife, and for the purpose of defeating her claim, fraudulently transferred the title to the property to appellant in 1879, but in trust, and that appellant took the title in trust, agreeing to reconvey it upon demand, and that the reconveyance was in satisfaction of this agreement. This was all traversed, except it was admitted that Michael Kress had conveyed the property to appellant in 1879, and that she continued to hold the title until it was reconveyed to him in 1884.

The proof in the record shows (and the certificate of the clerk to the transcript is that the record is complete) that appellant loaned to Michael Kress $1,000 about 1879, with which to finish paying for the land in question, and that he conveyed the title to appellant to secure her in this loan. The evidence on this question is by appellant and by three other witnesses, who testified that Michael Kress, in effect, so admitted to them. So far as appellant's testimony is concerned as to the transactions of the decedent, it was incompetent, and, although there appear to have been no exceptions filed to the depositions, and at least none acted upon by the trial court, we will not consider her evidence in determining this question. Upon a plea of no consideration the burden is upon the defense. The writing, under our statute, purports a prima facie consideration. In addition to this is the testimony of the witnesses above named as to the admissions made by the decedent in his lifetime. There is absolutely no evidence in the record to the contrary. At the utmost the circumstances attending the transactions are such as to create a suspicion of appellant's claim. These circumstances are: Michael Kress is shown to have been a small farmer, a laborer in a mill, of limited means, hard-working, and economical. Appellant claims to have had, and to have earned by her labor, the $1,000 in question. There is no other evidence than hers as to her financial circumstances. Michael Kress, during the lifetime of his first wife, took appellee Amelia Frederick from an orphan home when she was aged 14, and put her to work as a menial. She continued to live in his family until after the death of his wife, which occurred when Amelia was about 18. It may be gathered from the record that Michael seduced Amelia, and after the birth of the child forced her to leave his home. A short while before this--a few months before--he made the deed to appellant. Directly after the birth of this child, Amelia began a prosecution against Michael Kress under the bastardy statute. This was settled before trial by the marriage of Michael and Amelia. Some time after this marriage, Michael Kress procured appellant to reconvey the property to him upon the condition that he execute to her the note and the mortgage sued upon, which was done. Although some of the circumstances are enough to well arouse one's suspicions that the transaction by which the land was conveyed by Kress to appellant was merely a device by Michael Kress to defeat Amelia's demand against him, yet there is no positive evidence to this effect, nor is there any contradicting the testimony offered for appellant as to the transaction of loaning the money. It will not do to decide a case contrary to all the testimony merely because some circumstances tend to arouse a suspicion as to the truthfulness of the evidence. A well-founded suspicion will cause a close and critical scrutiny of the evidence tending to establish the fact in doubt; but when such scrutiny is had, and still the mind can lay hold of nothing in the record sufficient to overcome the evidence, the suspicion must yield to the testimony. In fact, every word of appellant's evidence may be true, and yet the circumstances named exist as shown. We conclude that the court erred in denying appellant judgment upon her note.

The mortgage sued on, given to secure the note, purports to be between Michael Kress, of Kenton county, Ky. of the first part, and Catherine Kiesewetter, of Cincinnati, Ohio, of the second part. It recites the indebtedness of Kress to Kiesewetter, and gives a lien upon the real estate to secure its payment when due. The concluding paragraph is as follows "In witness whereof the said Michael Kress and Amelia Kress, his wife, who hereby releases and relinquishes all right of...