Latham v. Latham

• Court: Kentucky Court of Appeals
• Writing for the Court: MORRIS, Commissioner.
• Citation: Latham v. Latham, 305 Ky. 101, 203 S.W.2d 45 (Ky. Ct. App. 1947)
• Decision Date: 10 June 1947
• Parties: LATHAM v. LATHAM.

203 S.W.2d 45

305 Ky. 101

LATHAM v. LATHAM.

Court of Appeals of Kentucky

June 10, 1947

Appeal from Circuit Court, Muhlenberg County; A. J. Bratcher, Judge.

Action for divorce by Henry Latham against Lola Latham who filed counterclaim for divorce. From that part of decree adjudging that certain property was owned jointly by the parties and ordering its sale, the defendant appeals.

Judgment affirmed.

Belcher & Donan, of Greenville, for appellant.

Jarvis & Ross, of Greenville, for appellee.

MORRIS Commissioner.

In his petition seeking absolute divorce appellee made the statutory charge of cruel and inhuman treatment, without fault on his part, and alleged that he and defendant were owners of a house and lot in Greenville, each owning an undivided one-half interest; he asked that it be sold and the proceeds divided between them.

The answer of defendant asking absolute divorce, denied material allegations of the petition, and in counterclaim charged cruel and inhuman treatment. As to the real property she plead that the original deed conveyed to her, and she was the sole owner, pleading facts under which she sought to fortify her claim, among them that in the execution of a mortgage to secure a loan, the husband refused to sign until the deed to the Greenville lot was, after delivery to her 'changed so as to include the husband as grantee,' although he had furnished no part of the purchase price.

She added that she had built an addition to the house, and had paid off the mortgage debt with her funds, with the exception of $306.90, made by the husband on September 8, 1943; that she had paid for repairs, up-keep and taxes, and made improvements, all paid for with her funds. She prayed that she be adjudged the sole owner of the property. The chancellor upon submission granted the wife divorce, giving her all household goods and $35 per month allowance until further orders. He decreed that the house and lot was joint property, and not being subject to division ordered it sold. Appellant excepted only to that part which adjudged joint ownership and order of sale and was granted appeal. The question is whether or not the court was in error in thus holding, and is the only one discussed in appellant's brief, save a question of procedure.

Appellant points out that there was no reply to or traverse of the affirmative allegations of the counterclaim and contends that all testimony of appellee on these points was incompetent. As we read the pleadings the issue raised was the ownership of the house and lot. The whole case was prepared, submitted and adjudged on that issue, as if there had been a traverse. We have examined the depositions and find no material objections to testimony; no exceptions filed nor motion made for judgment on the pleading. The record shows that the question was first presented here. Under the state of the record the defect in pleading was waived, and it is too late to raise the question here. Hardin's Committee v. Shelman, 245 Ky 508, 509, 53 S.W.2d 923; Harding's Adm'r v. Trust Co., 269 Ky. 622, 108 S.W.2d 539.

The parties were married in 1922, and for some time got along fairly well. In later years, due to the fact as is readily gathered from the record, that both were high tempered, their lives were anything but pleasant; there had been previous separations, and appellant had theretofore sued for divorce which he says was abandoned on account of the children.

At some time after their marriage a Mr. Randolph conveyed to Mrs Latham a lot in Luzerne, Kentucky, which had an old house on it. Latham tore down the old house and rebuilt. The two lived there for some time until that house burned. It was insured in Mrs. Latham's name and she collected $300 for the loss. They later learned that one Smith had a house in Greenville for sale. They looked at it and agreed to buy at $1,000. At the time of purchase it appears that aside from payment of $5 earnest money, which appellee says he paid and appellant says was her money, and the $300 insurance money, they had nothing for further payment. The Federal Loan Association agreed to lend $700 on the property, upon joint application of parties. There was a delay until title was approved, and in the meantime Latham applied to his father, and they obtained from a friend a cash loan of $750, and of this $700 was paid to Smith on the lot. The money obtained from the Association was paid to the first lender.

The deed as originally executed in December 1940, conveyed title to Mrs. Latham. When it came to executing the mortgage the association required signature of both parties. Mr. Latham's father seemed to be engineering the deal. He says the deed was delivered to either him or Latham, or both, and he noted that Mrs. Latham was grantee, a fact which Latham says he had not noted. The father suggested that the deed should have placed title in both. The matter was discussed with Mrs. Latham, and she made no objection to the change, and before the deed was delivered to her it was taken by the parties to an attorney's office, and the name of appellee was inserted as joint grantee, conveying to both with right of survivorship and to their heirs.

It is stated in appellant's brief that Mrs. Latham only consented to the change in order to complete the loan, and it was made with the knowledge of the grantee. Appellant's counsel treats the question to be determined as one of law that is, whether any part of the title to real estate 'can be transferred to another by merely writing the other party's name into the deed as a party...