Morgan v. Christian

• Citation: 142 Ky. 14,133 S.W. 982
• Parties: MORGAN et al. v. CHRISTIAN et al.
• Decision Date: 01 February 1911
• Court: Court of Appeals of Kentucky

133 S.W. 982

142 Ky. 14

MORGAN et al. v. CHRISTIAN et al.

Court of Appeals of Kentucky.

February 1, 1911

Appeal from Circuit Court, Ohio County.

Action by E. H. Morgan and others to foreclose a mortgage, in which S. B. Christian and another were admitted as parties defendant. From a judgment for the named defendants plaintiffs appeal. Reversed and remanded.

J. P Sandefur and Barnes & Anderson, for appellants.

Glenn &amp Simmerman, for appellees.

LASSING J.

In the the fall of 1895, John H. Tanner, a resident of Ohio county Ky. died, and at the November term of the county court for said county the following was probated as and for his last will: "State of Kentucky, County of Ohio, This September 26, 1895. In the presence of Almighty God, and these witnesses, I hereby make my will as follows: I will my wife Sarah B. Tanner 64 1/2 acres more or less of land, the home farm, and I also will Sarah B. Tanner 87 acres more or less. I also give her the right to sell the 87 acres of land to William McLellan Tanner and Isaac H. Tanner, that she has the right to sell it and no one can interfere. I also give the boys enough timber to repair their place, provided they buy it. I also will her her one yoke of steers and cow and two yearlings. I also will her one mare and colt, the mare to Isaac H. Tanner when he is 21 years old. I also will her my farming implements, and notes and accounts. I also will her my sheep and hogs and also my house furniture, and also my part of present crop growing on both farms. I also will her my buggy. I also want her to pay my debts as she makes the money or can. She also can hold this entire property or depts this is my will so long as she remains my widow, and if she marries, the lower tract of land will be equal divided between the boys and Lizzie Tanner home farm. John H. Tanner. D. P. Moseley. J. M. Ralph. Given under my hand, this September 26, 1895." He left surviving him a wife and three children, two sons and a daughter. The widow took all of the estate under the will and held it until she married Charles Christian, of Daviess county. Following her marriage she surrendered the 64-acre tract, known as the home tract to her daughter, who had theretofore married, gave up the 87-acre tract to her two sons, and moved to the home of her new husband to live. A part of the purchase money remained unpaid on the 87-acre tract, and the boys sold off a small portion thereof to pay this debt. After this was done they divided the balance between them. The daughter and her husband took charge of the home tract, listed it for taxation, paid the taxes, and used it as they pleased. They borrowed money from three different persons and mortgaged the land to secure the loans. The mortgage debts matured, and, being unpaid, suit was instituted to collect the debts and subject the land to their payment. When the suits were brought, the daughter and her husband had rented the farm and moved out of the state, and, though warned of the nature and pendency of the suit, made no defense. Mrs. Christian filed a petition to be made a party, and asked that it be taken as her answer. The court permitted this to be done. In her answer she alleged that, under the will of her husband, she was the owner of the fee in said land, and that, if the court should be of opinion that the will did not give her the fee, then, as widow, she was entitled to a one-third interest for life as dower. Or, if this should be denied her, then she had a lien on the land for the money which she had paid out in discharge of the debts of her husband. Her title...