Nichols v. Nichols

• Decision Date: 08 November 1918
• Parties: NICHOLS ET AL. v. NICHOLS.
• Court: Kentucky Court of Appeals

205 S.W. 953

182 Ky. 18

NICHOLS ET AL. v. NICHOLS.

Court of Appeals of Kentucky.

November 8, 1918

Appeal from Circuit Court, Metcalfe County.

Suit by Ann E. Nichols against E. L. Nichols and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Baird &amp Richardson, of Glasgow, and M. O. Scott, of Edmonton, for appellants.

J. W Kinnaird, of Edmonton, for appellee.

CLAY C.

The sole question on this appeal is whether the deed conveying 62 acres of land in Metcalfe county to Ann Eliza Nichols and T Y. Nichols, her husband, should be reformed, and Mrs. Nichols declared the owner of the land, on the ground that her husband was named as one of the grantees in the deed by the mistake of the scrivener. The contest is between E. L Nichols and others, children and descendants of T. Y. Nichols by a former wife, on the one hand, and Ann Eliza Nichols on the other. Judgment was rendered in favor of Ann Eliza Nichols and E. L. Nichols and others appeal.

The land in controversy is a portion of a larger tract of land owned by Edward W. Eubank at the time of his death. Upon the death of Edward W. Eubank and his wife, Margarett Eubank, Ann Eliza Eubank (now Ann Eliza Nichols), her two sisters, Mary Etta Eubank and Luvena C. Eubank, and her brother, David Eubank, children of Edward W. Eubank, became the joint owners of the larger tract and their interest vested prior to the marriage of Ann Eliza to T. Y. Nichols. On August 31, 1892, and after Ann Eliza's marriage to T. Y. Nichols, her sisters, Mary Etta and Luvena, together with her brother, David W. Eubank, conveyed the 62 acres in controversy by deed, the material parts of which are as follows:

"This deed of conveyance, made and entered into this 31st day of August, 1892, between Mary Etta Eubank, Luvena C. Eubank, and David W. Eubank, parties of the first part, and Ann Eliza Nichols and T. Y. Nichols, her husband, all of Metcalfe county, Kentucky, and heirs at law Edward W. Eubank and Margarett Eubank, deceased, parties of the second part, witnesseth: That said party of the first part, for and in consideration of the sum of ($1.00) one dollar cash in hand paid, the receipt whereof is hereby acknowledged, do hereby sell and convey to the party of the second part, their heirs and assigns, following described property, to wit: A tract of land in Metcalfe county, Kentucky, near the sinks of Bever creek, and known as a part of the Edward W. Eubank farm; said second parties being heirs of said Edward W. Eubank and Margarett Eubank, deceased, and all of the heirs, being of age, have agreed on a division of said lands. Said tract of land is bounded as follows: [Here follows a description of the land.] To have and to hold the same, together with all the appurtenances thereunto belonging, unto the party of the second part, their heirs and assigns, forever, except eight acres sold to Dilly. And the said party of the first part hereby covenants with the said party of the second part that they will warrant the title to the property hereby conveyed unto the said party of the second part and their heirs and assigns forever."

After the execution of this conveyance, T. Y. Nichols entered cleared, and improved the land. W. W. Baize, a neighbor, says that in the year 1911 he approached Mrs. Nichols for the purpose of buying the tract in controversy. She stated that she was not ready to sell it, whereupon he told her that, when she got ready to sell it, he wanted to buy it. "The old man spoke up and said he had tried to get her to sell it, but he reckoned she wanted to go down there and live on it; that he had nothing to do with it; that he reckoned she wanted to live on it after he died." It further appears that, when T. Y. Nichols died in the year 1914, he left a will purporting to devise all of his property and making no reference to the tract in controversy, though referring to other lands which he owned. On the other hand, H. B. Nichols...