McKenzie v. Hinkle
| Decision Date | 21 January 1938 |
| Citation | 271 Ky. 587,112 S.W.2d 1019 |
| Parties | McKENZIE et ux. v. HINKLE et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Johnson County.
Suit by Kate Hinkle and another against E. M. McKenzie and wife wherein plaintiffs asserted a right to a proportionate part of a condemnation fund as well as proportionate title to a tract of land. Judgment for plaintiffs, and defendants appeal.
Reversed with directions.
Howes & Walker, of Paintsville, for appellants.
C. F Pace, of Paintsville, for appellees.
John J. Brown, a resident of Johnson, county, Ky. owned, during his adult life, the small tract of land involved in this controversy, upon which his residence was located and in which he reared a family of six or seven children, by his first wife. She died prior to August 21, 1908, and the surviving husband married a second wife, Frances Brown. On the day indicated the husband prepared, signed, and acknowledged a deed, conveying to his second wife the tract of land for her life; but he inserted in the deed these conditions: (1) That if his wife, the vendee in that deed, died before he did, then the land should revert to him; (2) that if his wife, the vendee, should survive him, then all interest conveyed to her should cease if she should marry again, when the property would "revert and become the property of the children, or their issues of first party, share and share alike"; (3) the acceptance of the deed by the vendee should be in lieu of all of her dowable interest in the estate of the vendor; (4) that if the parties to the deed should separate, then the wife's interest should cease and the estate vest in the grantor; and (5) "The first party hereby reserves the right to control the above land during his natural life, and this deed shall not become effective until after the death of the first party."
It was caused to be recorded by the vendor, but it is proven that he never parted with the possession of it thereafter or at any time after its execution, and the only delivery of it was what might be inferred from the vendor having it recorded. The parties continued to reside upon the land, the children of the vendor having married and settled elsewhere--perhaps some or all of them upon other land given to them by their father. Mr. and Mrs. Brown, (the second wife) became considerably enfeebled through the effects of age, and on January 17, 1924, they, together with the adult children of Brown and the spouses of those who were married--excepting appellees--joined in a deed conveying the land absolutely to appellants, E. M. McKenzie and wife, upon consideration that the vendees would move into the Brown residence and take care of and supply the necessities and wants and maintain in every respect the grantees for and during the remainder of their lives. The vendees therein immediately moved to the Brown residence and began the performance of the consideration for the conveyance to them; but the arrangement was soon disturbed by the filing of an action in the Johnson circuit court by J. J. Brown and wife and all of his adult children who had signed the deed to the McKenzies-- not, however including appellees, two of the Brown children by his first wife who had not signed that deed. That petition alleged a failure on the part of the vendees (McKenzie and wife) to perform the conditions of the deed made to them on January 17, 1924. The McKenzies, as defendants in that action, controverted the allegations of the petition and averred that they had performed and expected to continue to perform the conditions of the deed executed to them. They furthermore charged that it conveyed to them the absolute title to the property and denied any interest owned therein by Brown and wife or any of their children, including those who were plaintiffs therein as well as appellees, who were not named as plaintiffs. They prayed for a dismissal of the petition and that their absolute title to the land be quieted and that defendants be enjoined from interfering with them in performing the conditions of their deed, or in disturbing them in any way in the enjoyment of their title.
Before the evidence in that case was completed, and of course, before the cause was submitted, J. J. Brown died, and there was some sort of revivor order made in the case, but the record in the instant case contains only a part of the pleadings, orders, and testimony therein, and we are unable to state the nature and character of the order of revivor. However, on the 10th day of March, 1928 (the cause having been theretofore submitted), the court rendered judgment dismissing the petition, and adjudging the costs against, not only the named plaintiffs in that petition, but also against the two appellees, who had not joined in that action and who had not signed the deed to appellants (the two McKenzies) of date January 17, 1924. However, they, about a year thereafter, made motion to modify that judgment as against them, which the court sustained. It was further adjudged, in addition to dismissing the petition, that the present appellants "are the owners in fee simple and entitled to the possession of the following described tract of land," etc., also "that defendants' (appellants here) title and possession in and to said tract of land be and the same are now quieted in the defendants and that plaintiffs be enjoined and restrained from interfering in any way with defendants' said possession." An appeal was prayed and granted to plaintiffs in that action from that judgment, but none was ever prosecuted. So that, it has continued to remain in full force and effect, with appellants in the undisturbed possession of the land. We shall hereafter refer to that action as "The Old Case."
In 1934 it became necessary for state road purposes to condemn a strip of land across the tract herein involved (and the one so conveyed to appellants) for the purpose of constructing a state highway, and on February 14, of that year condemnation proceedings for that purpose were inaugurated in the Johnson county court. It resulted in assessing the damages for the strip taken and for consequential damage to other portions of the farm at the sum of $400, which was paid into court. In the meantime the widow of J. J. Brown, who is yet living, and all of his children--including those who signed and those who did not sign the deed, executed to McKenzie and wife--were brought into the case; but none of them asserted any rights in and to the land or to the fund created by the condemnation judgment, except the...
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