Mullins v. Jennings' Guardian
| Decision Date | 25 March 1938 |
| Citation | 273 Ky. 68 |
| Parties | Mullins v. Jennings' Guardian et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Limitation of Actions. — The statutes of limitation relating to actions for relief against fraud or mistake impose conditions precedent to the right of action and do not prescribe a limitation period for defendant's personal benefit which he may waive by. failing to expressly rely thereon (Ky. Stats., secs. 2515, 2519).
2. Limitation of Actions. — In an action for relief against fraud or mistake, plaintiff must allege and prove, if it is denied, that his action is not barred, and question of limitations may be raised by demurrer to petition (Ky. Stats., secs. 2515, 2519).
3. Limitation of Actions. — A grantee's action to cancel or reform deed on ground that limitations on her interest were inserted without her knowledge through fraud or mistake was barred where grantee had had possession of deed for more than five years before action was filed, and grantee could read and write and did not exercise the slightest diligence to discover contents of deed (Ky. Stats., secs. 2515, 2519).
4. Workmen's Compensation. — Lump sum settlements of compensation may not be made to an injured employee or his dependents except with approval of Compensation Board (Ky. Stats., secs. 4907, 4908).
5. Workmen's Compensation. — Where payment of a lump sum settlement of compensation is acknowledged by trustee appointed to administer and apply fund received for benefit of injured employee or his dependents, employer and his insurer are completely discharged from further liability (Ky. Stats., secs. 4907, 4908).
6. Workmen's Compensation. — A lump sum settlement of compensation directed to be paid to widow and dependents of deceased employee was a "trust fund," and widow's interest in fund and farm purchased therewith ceased upon her remarriage, even if deed to farm had not so provided, and thereafter title to farm vested in dependents (Ky. Stats., secs. 4894, 4907-4909).
7. Reformation of Instruments. — In action by deceased employee's widow to cancel or reform deed to farm purchased with fund awarded as a lump sum settlement of compensation, evidence supported trial court's finding that widow had agreed that title to farm should be taken by widow and her two children with proviso that at her death or remarriage all of her title should cease and immediately vest in children, as against contention that proviso was inserted without her knowledge through fraud or mistake.
8. Waste. — In action to reform or cancel deed, evidence was insufficient to support judgment for defendants on their counterclaim for waste in selling timber from realty, where record showed that some timber was converted into lumber, but did not show what became of it other than that a considerable portion of it was used to build a residence and outbuildings on premises.
Appeal from Rockcastle Circuit Court.
WILLIAMS & DENNY for appellant.
J.J. FELTON and H.J. McCLURE for appellees.
Affirming in part and reversing in part.
On and prior to August 16, 1926, Eddie Jennings was in the employ of the Andrews Steel Company in Newport, Ky. Both he and his employer were operating under our Workmen's Compensation Act, Kentucky Statutes, sec. 4880 et seq., and on the day indicated he sustained a fatal accident compensable thereunder. He left surviving him his widow, the appellant and plaintiff below, Nancy Mullins, and two infant sons, the appellees, Everett Jennings and Hubert Jennings. They were then about 6 and 4 years of age, respectively, and neither of them at that time had a statutory guardian. Application was made to the Board of Compensation by the widow for herself and her two infant children, as dependents of her deceased husband, for an award under the statute, which was later rendered whereby the widow was allowed for herself and children weekly installments to continue for 335 weeks (under unchanged conditions), not to exceed a total amount of $4,000. The weekly payments were made for about 2 years, when the widow (appellant here), in consultation with relatives of herself and children, concluded that it would be best for herself and children if the balance of the allowed compensation were paid in a lump sum and to invest it, or enough of it, in a home for herself and children as dependents of her deceased husband. Thereupon due application was made to the Compensation Board in connection with negotiations with their employer, or its indemnity company, which culminated in an amended award whereby the widow, representing herself and children, was paid in final settlement of all future installments the lump sum of $2,700. But it was stipulated and determined by the board as a part thereof that the title to any real estate that might be purchased with the fund should be taken to the three (the widow and each of her two children), with the proviso that at the death or remarriage of the widow all of her title in the property should cease and immediately vest in her two children jointly.
After the rendition of that award, and the payment of the lump sum therein determined as the present value of the balance due under the original one, a tract of land containing 90 acres was purchased with the aid and assistance of the appellee and defendant below, Melvin Jennings, who in the meantime had been appointed and qualified as statutory guardian of the infant, Everett Jennings — the other infant appellee and defendant below, Hubert Jennings, never having become the ward of any statutory guardian. The land agreed to be purchased was owned by one W.W.J. Alcorn, and the price was $20 per acre, or a total sum of $1,800. He met Hon. B.J. Bethurum in the latter's office in Mt. Vernon, Ky., for the purpose of making the deed pursuant to the agreement, and also with the requirements of the modified award. Plaintiff was then residing in Pittsburg, Laurel county, Ky., where she was on the day the deed was drafted by Mr. Bethurum in his office — he having represented the dependents throughout all of the proceedings before the Compensation Board.
The vendor, Alcorn, insisted on the attorney calling plaintiff over the telephone and explaining to her the conditions and stipulations to be inserted in the deed, as hereinbefore indicated, limiting her interest in the conveyed real estate in accordance with the requirements of the Compensation Board, and which is likewise in conformity with the provisions of our statute for the payment of compensation. See section 4909 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes. The deed was finally so executed and the consideration was paid to the vendor by check issued against the lump sum settlement fund which had been deposited in a bank in Mt. Vernon, Ky., in the name of plaintiff; but it will be perceived that $900 of the fund was not invested in the purchased land, though it, according to the testimony, was used in making improvements thereon after the title was so obtained.
Following the completion of the purchase, which was in 1928, plaintiff married one Mullins, and she and her husband, together with her two infant children, moved upon the farm, and have since continued to reside thereon, except the infant Everett Jennings, who left and took up his residence with some of his grand-parents some time before the filing of this action in the Rockcastle circuit court by plaintiff against her two infant children, and the guardian of the elder one, on August 21, 1935. By her petition she sought to cancel or reform the deed as it was written so as to eliminate therefrom any attached conditions — whereby her interest therein would become forfeited — upon the ground, as she alleged, that such limitations upon her interest were inserted in the deed without her knowledge or consent, and through fraud or mistake on the part of her attorney. Before she ceased filing amendments she asserted (a) that the fund arising from the lump sum settlement composed a part of the assets of her husband's estate; (b) that, if mistaken in that contention, then she became the absolute owner of a one-third undivided interest in and to the purchased farm, and (c) that she was entitled to remuneration for expense in caring for and maintaining her infant children and that she should be allowed the sum of $15 per month for each of them for that purpose and that it should be declared a lien on the land which she asked to be enforced.
All of the material facts averred in plaintiff's pleadings were denied by the answer of Everett Jennings, but the infant Hubert Jennings filed his personal answer, in which he admitted the averments of his mother's petition and joined in the prayer thereof. A guardian ad litem was later appointed for him and he moved to strike his ward's previously filed answer from the record and to adopt the one filed by his ward's brother, which motion the court sustained. The defensive pleadings as so made up also contained a counterclaim for rent of the premises from and after the time the plaintiff remarried, and for waste that she and her husband had committed to the premises, consisting mainly in selling timber therefrom. Following pleadings made the issues and upon submission the court dismissed plaintiff's petition and rendered personal judgment against her for $300, the supposed amount of timber that she and her husband had sold from the farm while living upon it. From that judgment she prosecutes this appeal.
Counsel for appellant argue the contentions made in the pleadings of their client as hereinbefore pointed out. Those arguments are combated by counsel for defendants upon three grounds: (1) That the attacked deed was executed on January 5, 1928, and the petition was not filed until August 21, 1935, a period of 7 years, 7 months, and 19 days, and as a consequence the action was barred under the provisions of ...
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