Malone's Committee v. Lebus

• Decision Date: 27 September 1906
• Citation: 96 S.W. 519
• Parties: MALONE'S COMMITTEE v. LEBUS.
• Court: Kentucky Court of Appeals

96 S.W. 519

MALONE'S COMMITTEE v. LEBUS.

Court of Appeals of Kentucky.

September 27, 1906

Appeal from Circuit Court, Harrison County.

"Not to be officially reported."

Action by Nora Malone's committee against Lewis Lebus. From a judgment granting insufficient relief to plaintiff, both parties appeal. Affirmed on both appeals.

W. S Cason and H. Peterson, for appellant.

W. T Lafferty, for appellee.

SETTLE J.

This action was instituted against appellee by appellants, Nora Malone a deaf mute and inbecile, and P. P. Wyles, her committee, to recover interest at the rate of 6 per cent. per annum, from June 1, 1873, to June 1, 1904, on a $300 promissory note bearing date June 1, 1872, alleged in the petition to have been executed to Caleb Jones, trustee for Nora Malone, by M. D. Whittaker in part payment for a lot of ground in the city of Cynthiana, described in the petition, and conveyed to the latter by Jones.

The petition further alleges that by the terms of the deed to Whittaker, this note does not mature until the death of Nora Malone, but the interest thereon is to be paid annually for her use, and that a lien was retained, in the deed, on the lot in question as security for the payment of the note and interest.

It is also averred in the petition that by successive deeds the title to this lot passed through the hands of several intermediate grantees and finally vested in appellee Lewis, the present owner thereof; that the note of $300 and accrued interest for the years mentioned, executed by his remote grantor, Whittaker, to Caleb Jones, trustee for Nora Malone, has never been paid, and that the lien retained on the lot to secure its payment with interest is still alive and in full force. Therefore judgment was prayed against appellee for the accrued interest, and also for the enforcement of the lien and sale of the lot for its payment. A demurrer was filed to the petition by appellee, which was sustained by the lower court, and the petition dismissed. On appeal that judgment was reversed by this court. Malone's Committee v. Lebus, 77 S.W. 180, 25 Ky. Law Rep. 1146. The opinion sets out the several deeds from Caleb Jones down to appellee, together with an elaborate statement of the facts of the case, which renders unnecessary a further statement of the facts in this opinion.

In discussing the questions of law involved, the former opinion says: "The reservation in the deed from Jones to Whittaker of the interest on the $300 note for the use of Nora Malone during her life is unequivocal, and sufficiently explicit to create a valid gift thereof to the beneficiary, Nora Malone, and having been once made, it was beyond the power of Jones to thereafter revoke it, without the consent of the donee. The note was not, by its express terms, to mature within the life of Nora Malone, and at her death it provided that the principal was to be paid to the donor. It was therefore natural and proper that he should have retained its possession. Besides, if, as alleged, Nora Malone was an imbecile, or a person of unsound mind, at the date of the gift, no acceptance thereof by her was essential to render it valid, as the law will presume an acceptance on her part. Pennington v. Lawson, 65 S.W. 120, 23 Ky. Law Rep. 1340; Bunnell v. Bunnell, 64 S.W. 420, 23 Ky. Law Rep. 800. A purchaser of real property must look to the records for evidence of title, and when it is there shown to be encumbered with liens in favor of a third person, he is presumed to have purchased it with such knowledge and subject to such conditions, and himself becomes a trustee for the beneficiary with respect to the property, and is bound in the same manner as the original trustee from whom he purchased. Jones on Liens, §§ 1083, 1084; 2 Pomeroy's Eq. Jur. §§ 581 and 688; Johnston v. Gwathmey, 4 Litt. 319, 14 Am. Dec. 135. Nor is appellee's contention that appellant's claim is stale and barred by the statute of limitations maintainable, at least in so far as her claim to the annually accruing interest is not within the statute."

Upon the return of the case to the lower court, appellee filed answer and later several amendments thereto. The answer as amended traversed the allegations of the petition, pleaded the statute of limitation as a bar to the action, and in addition averred that at the time Caleb Jones conveyed the lot in controversy to M. D. Whittaker, whereby it is claimed the lien was retained on the lot to secure the payment of the note and interest, payable to himself for the use of Nora Malone, he (Jones) did not hold the title to the lot. For he had theretofore, in 1869, conveyed it by deed to one S. S Veech, in consideration of $795, for which Veech gave his note, also secured by a lien on the lot. That Veech having defaulted in the payment of that...