Looney v. Elkhorn Land & Improvement Co.

• Decision Date: 09 June 1922
• Citation: 195 Ky. 198,242 S.W. 27
• Parties: LOONEY v. ELKHORN LAND & IMPROVEMENT CO.
• Court: Kentucky Court of Appeals

242 S.W. 27

195 Ky. 198

LOONEY v. ELKHORN LAND & IMPROVEMENT CO.

Court of Appeals of Kentucky.

June 9, 1922

Appeal from Circuit Court, Pike County.

Action by Malinda J. Looney against the Elkhorn Land & Improvement Company. Petition dismissed, and plaintiff appeals. Affirmed.

J. E Childers, of Pikeville, for appellant.

Stratton & Stephenson, of Pikeville, for appellee.

THOMAS J.

The appellant and plaintiff below, Malinda J. Looney, filed this action in the Pike circuit court against appellee and defendant below, Elkhorn Land & Improvement Company, seeking to establish her title to a 1/40 undivided interest in and to a tract of land to which defendant claimed the entire title. She alleged that the land could be divided by allotting to her the interest she claimed without materially impairing the value of each share. The answer denied her title and asserted entire ownership of the land in defendant. The defensive pleading also set out the facts by which it was claimed that plaintiff had divested herself of any interest in the land which were: That on April 10, 1902, she, in the name of Malinda J. Hogston, executed a deed for her undivided interest in the land in controversy to E. S. Baker, in which she covenanted and agreed that "the party of the first part hereby covenants that she is over the age of 21 years old, unmarried and legally able to convey said land," and that defendant, who bought the land from Baker two years thereafter, was an innocent purchaser, and that plaintiff was estopped to assert any legal incapacity on her part to make the deed or any invalidity thereof. Appropriate pleadings made the issues, and upon submission the court dismissed the petition, and to reverse that judgment she has appealed.

The proof shows without contradiction, and indeed it is so stipulated, that plaintiff is a remote descendant of William Ramey and as such inherited from her mother a 1/40 undivided interest in the land. It is therefore unnecessary for us to state the persons or their interests through whom plaintiff claims. In addition to the above covenant contained in plaintiff's deed to Baker, the latter testified that plaintiff at the time she executed that deed, and before receiving the consideration therefor (which was $20), signed and swore to an affidavit stating that she was over the age of 21 years and unmarried, and it is shown by the testimony which is uncontradicted, that both he and his vendee, the defendant, relied upon the facts constituting the estoppel as true, and that they were induced thereby to make their respective purchases. So that the only question for determination is whether, under the circumstances, plaintiff is or not barred from a recovery, although when she made the deed she was only 20 years of age and was married to and living with Alex. Mullins in Dickenson county, Va., and he, of course, never joined in the deed.

In endeavoring to solve the question, we encounter at the outset two well-established legal principles, one of which is that a married woman can be divested of title to her real estate only by a conveyance executed according to the prescribed forms of law and that an attempted conveyance contrary thereto is void. This principle, as appears from the authorities cited below, is quite universal, and it has been applied and followed by this court in an unbroken line of cases. 13 R. C. L. 1307, 1308; 21 Cyc. 1203; Brady v. Gray, 17 Ky. Law Rep. 512, 31 S.W. 734; Bell v. Bair, 28 Ky. Law Rep. 614, 89 S.W. 732; Price v. Big Sandy Co., 32 Ky. Law Rep. 969, 107 S.W. 725; Syck v. Hellier, 140 Ky. 388, 131 S.W. 30; Mays v. Pelley (Ky.) 125 S.W. 713; Buchannan v. Henry, 143 Ky. 628, 137 S.W. 222; Mounts v. Mounts, 155 Ky. 363, 159 S.W. 818; Mueller v. Ragsdale, 158 Ky. 412, 165 S.W. 404; Farmers' Bank of Hardinsburg v. Richardson, 171 Ky. 340, 188 S.W. 406; Webber v. Tanner, 23 Ky. Law Rep. 1107, 64 S.W. 741; Ky. Stave Co. v. Page (Ky.) 125 S.W. 172; Venters v. Potter, 184 Ky. 447, 212 S.W. 117; and many others referred to in the opinions, and also in the notes to section 506 of the Statutes, which requires that a conveyance by the wife of real estate must be made in conjunction with her husband or he must have theretofore conveyed it by separate deed. The cases referred to hold that when that section has not been complied with the attempted conveyance by the wife is void. But what the equities of the parties might be upon a disaffirmance in such cases is a question with which we are not now concerned.

The other principle with which we are confronted is that no one, whether sui juris or not, may be estopped to dispute the invalidity of a void contract. In other words, if a contract is void because against public policy, or for any other reason, it cannot be given vitality through the operation of an estoppel, which would be but a recognition and enforcement of the void contract through the indirect means of an estoppel when it would not be recognized or enforced without the estoppel. Many of the cases supra substantiate this principle, and other authorities and cases are: 10 R. C. L. 801; 16 Cyc. 7210; 21 C.J. 1111; Am. & Eng. Encyc. of Law (2d Ed.) vol. 11, p. 32; Bohon's Assignee v. Brown, 101 Ky. 354, 41 S.W. 273, 38 L. R. A. 503, 72 Am. St. Rep. 420; Millikin v. Haner, 184 Ky. 694, 212 S.W. 605; Reed v. Johnson, 27 Wash. 42, 67 P. 381, 57 L. R. A. 404; Minnesota D. & P. R. Co. v. Way, 34 S.D. 435, 148 N.W. 858, L. R. A. 1915B, 925; Brick v. Campbell, 122 N.Y. 337, 25 N.E. 493, 10 L. R. A. 259; Franklin National Bank v. Whitehead, 149 Ind. 560, 49 N.E. 592, 39 L. R. A. 725, 63 Am. St. Rep. 302; First National Bank v. Monroe, 135 Ga. 614, 69 S.E. 1123, 32 L. R. A. (N. S.) 550; Tate v. Commercial Building Association, 97 Va.

74, 33 S.E. 382, 45 L. R. A. 243, 75 Am. St. Rep. 770; Lukens v. Nye, 156 Cal. 498, 105 P. 593, 36 L. R. A. (N. S.) 244, 20 Ann. Cas. 158; and Central Land Co. v. Laidley, 32 W.Va. 134, 9 S.E. 61, 3 L. R. A. 826, 25 Am. St. Rep. 797. And so some courts hold, as would seem to be the logical conclusion from the above two principles, that no collateral representations or conduct on the part of a married woman can add to her void deed any element which would strengthen the estoppel so as to allow its enforcement against her. Thus, in 13 R. C. L. 1312, 1313, it is said:

"So it has been said that if in a conveyance by a married woman she were to covenant that she was sole, was seized in her own right and had full power to convey, such covenant would avail the grantee nothing."

If a false covenant in the deed of the wife would not create such fraud on her part as to cause the estoppel to arise, neither could her verbal representations as to her capacity to convey, made contemporaneously with the execution of the deed, so operate; and each case would be determined upon the single fact whether the husband joined in the deed; all other collateral conduct and representations would be entirely eliminated. And this, as we have intimated, is the logical conclusion from the two principles above stated, if they are to be administered without exception.

Applying however, the superior equitable doctrine that fraud vitiates all transactions and that no principle of law, howsoever well settled, can be invoked to allow one to take advantage or profit by his positive or active fraud, many courts, including this one, have created an exception to the rule that a void contract cannot be the foundation of an...