Neurenberger v. Lehenbauer

• Decision Date: 09 January 1902
• Citation: 66 S.W. 15
• Parties: NEURENBERGER v. LEHENBAUER et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 15

NEURENBERGER v. LEHENBAUER et al. ^[1]

Court of Appeals of Kentucky.

January 9, 1902

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by Julia Lehenbauer against John Neurenberger and others for a sale of land and division of the proceeds. Judgment for plaintiff, and defendant Neurenberger appeals. Reversed.

L. J Crawford, for appellant.

Root &amp Root, for appellees.

O'REAR J.

In 1892 the ancestor of the parties in interest in this suit conveyed certain described real estate lying in Campbell county to his son-in-law, Henry Dischar, for the recited consideration of $2,400 paid. The deed purported to convey a fee-simple title. The grantor and his wife died in 1898, intestate. The land was conveyed by Dischar and wife to appellant, a son of the original grantor, in 1896, by quitclaim deed, for the actual consideration of $500. This suit is by one of the heirs at law of the original grantor against appellant in possession and the other heirs for a sale of the property because of its indivisibility; it being asserted in the petition that the deed first mentioned was "intended to be in trust," and that it was intended by the parties to create a trust for the sole benefit of the grantor, John Neurenberger, Sr. It was alleged that no consideration passed between Neurenberger, Sr., and Dischar. It was shown that the recited consideration was in fact fictitious. What passed betwen the parties when the deed in controversy was executed is not shown, further than this testimony of Dischar, the grantee "I did not pay him [the grantor] anything at any time for the land. He made me a present of it. He said the land was paid for when he made me the deed." Q. 6. Did the old man say why he deeded you the land at the time he came to your house and gave you the deed? A. Nothing. He didn't say what for. He only said the land belongs to me, and is paid for. That's what he said when he brought me the deed." From other evidence, of doubtful competency, it may be gathered that the old man was engaged in a litigation with one of his sons, and his purpose in making the conveyance was to prevent the land from falling into the son's hands. From these facts the argument is made by appellees (1) that, as there was an absence of the consideration recited, the deed was nudum pactum, and therefore void, and that consequently the grantee held it in trust for his grantor; and (2) that, as the deed purported to be one of bargain and sale, it could not be supported as a deed of gift by showing that fact aliunde. Those are the questions with which we have to deal. We do not agree with the argument.

The true consideration of a deed may always be shown, though it may contradict the writing. Ky. St. § 472. In this way the real transaction between the parties may be arrived at, not for the purpose of satisfying curiosity, but for the practical end of basing on the discovery appropriate legal relief, if relief is due. Here the contention is that as the...