Overton v. Overton

• Decision Date: 21 September 1906
• Citation: 123 Ky. 311,96 S.W. 469
• Parties: OVERTON ET AL. v. OVERTON ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 469

123 Ky. 311

OVERTON ET AL. v. OVERTON ET AL.

Court of Appeals of Kentucky.

September 21, 1906

Appeal from Circuit Court, Harlan County.

"To be officially reported."

Action by John T. Overton and others against Joseph Overton and others, to remove cloud on title. Judgment for plaintiffs. Defendants appeal. Reversed with directions.

H. C Clay, Isham G. Leabow, and H. F. Coleman, for appellants.

W. F Hall and Greene & Van Winkle, for appellees.

CARROLL C.

This action involves the title to 4,000 acres of land in Harlan county. The controversy between appellants and appellees concerning its ownership, grows out of the following state of facts: In 1845 there was issued to John Taylor a patent for this land, and in 1874 he died in the state of Tennessee, the owner of the land. During the period of his ownership, the land was considered of trifling value, and it does not appear that any person was in actual possession of it, or exercised any particular acts of ownership over it, but in 1888, Joe Overton, one of the appellants, for the recited consideration of $1,050 in cash, procured one, William Taylor, to make him a deed to this land. This deed was recorded in Harlan county soon after its execution, and shortly thereafter Overton undertook to place tenants in possession of the land and paid taxes on it from the time of his purchase until the institution of this action. The deed to Overton does not state what relation, if any, the grantor, William Taylor, was to John Taylor, the patentee, nor does it disclose how or under what claim of title the grantor was the owner of the land; but it is the contention of Overton that William Taylor was the only child and heir at law of John Taylor, the patentee, and that upon the death of John Taylor, William Taylor, as his heir, inherited this tract of land, and therefore, had the right to convey it to him. In 1897, Elizabeth Berry, brought a suit in the chancery court of Hancock county, Tenn.--the county in which John Taylor died-- setting up that about 1872 he made a will devising all of his property, including his lands in Kentucky, to her; that the will was duly executed and was placed in the hands of N. B. Overton, for the purpose of preserving it until the death of the testator, when it was to be probated; that the will had never been probated, and was either lost or destroyed; that she learned that a William Taylor was asserting title to the land as the son of John Taylor; and she prayed that the court establish the will of John Taylor and certify the same to the county court of Hancock county, Tenn., for probate, and asked for a warning order against William Taylor, whose residence was alleged to be unknown, as well as against any other heirs of John Taylor. In due time an order was made in the chancery court, under the Tennessee practice, taking for confessed the allegations of the petition; but soon afterwards Joseph Overton filed his petition in the case, averring that he was the owner of the land by virtue of his purchase of it from William Taylor, in 1888, and he asked that the judgment by default be set aside, and he be allowed to file his answer and assert his title to the land in Kentucky. This was permitted by the court, and his answer filed, denying that any will was made, or that if one was made, Taylor was incompetent at the time of its execution. He set up his purchase of the land from Taylor, averred that he had been in possession of it under his purchase from the date thereof, and asked that the petition of Elizabeth Berry be dismissed. The depositions of several witnesses were taken in this proceeding, and in October, 1897, an agreed judgment was entered in the action, establishing as the will of John Taylor a paper devising to Elizabeth Berry all of his estate, When this agreed judgment was entered, Overton, Mrs. Berry and her attorneys, executed to each other deeds, under which there was conveyed to Overton about two-thirds of this land, and to Mrs. Berry and her attorneys, the remainder of it. These deeds were put to record in Harlan county, and a copy of the will, established by the chancery court of Tennessee, and admitted to probate in the county court of that county, was presented for probate before the county judge of Harlan county, and in February, 1898, an order was made by the Harlan county court setting out, in substance, that the paper offered for probate as the last will of John Taylor, was duly and properly certified and proven to have been executed in such a way as to be a valid will of lands in this commonwealth, and the copy was admitted to probate, and ordered to be recorded as a valid will of real estate in this commonwealth. In June, 1900, the appellees in this appeal in behalf of themselves and the other heirs at law of John Taylor, appealed to the Harlan circuit court from the order of the county court, admitting to probate the paper offered as the last will of John Taylor. In the written statement filed by them, they charge that John Taylor died intestate; that he did not leave any child or children, or any direct descendants; that the appellants were his heirs at law, as the descendants of his brothers and sisters and his half-brothers and half-sister, and they asked to be allowed to contest the will for themselves and on behalf of all the heirs of John Taylor. To this appeal the devisee, Elizabeth Berry, entered her appearance and filed her answer, in which she charged that James Overton, John Overton, and Rebecca Overton, whom appellants claim were the half-brothers and half-sister of John Taylor, were not related to him in any legitimate degree, that if they were of kin to him at all, their father, while living with his wife, engaged in illicit intercourse with John Taylor's mother, and as a result of their cohabitation John Taylor was begotten and born out of lawful wedlock. To this answer the appellants filed a reply, reiterating the statement that John Taylor died intestate, leaving no children; that his mother, after the death of his father, gave birth to three illegitimate children--James Overton, John Overton, and Rebecca Overton; and that appellants were the descendants of these Overton children. They also alleged that the will controversy in Tennessee between Elizabeth

Berry and Joseph Overton was a fraudulent scheme concocted between them, for the purpose of establishing a paper as the last will of John Taylor, to deprive his rightful heirs of the land in controversy. Pending this proceeding in the Harlan circuit court, Elizabeth Berry died, and the action was revived against her heirs. A large quantity of evidence was taken by both parties to this controversy, and in 1903, the appellants moved the court to strike from the record the alleged will and transcript of proceedings in the chancery court of Tennessee, and the order probating the will, made by the Harlan county court, as well as the probate proceedings of the Hancock county (Tenn.) court.

The Harlan circuit court in disposing of this motion entered the following judgment: "This cause having been submitted to the court, on the written motion of appellants to strike from the record and files herein, the transcript of the proceedings in the chancery court of Hancock county, Tenn to supply the alleged last will of John Taylor, deceased, in an action wherein Elizabeth Berry was complainant and William Taylor and the unknown heirs of John Taylor were defendants. The decree of said court in said action and the alleged proceedings thereon, in the Hancock county court of Tennessee, and the copy thereof filed in the Harlan county court of Kentucky, and all of which has been filed in an action, for the reason set out in said motion, and the court having considered said motion, and having heard the argument of the counsel, and being advised, it is ordered by the court that said transcript of said proceedings in Hancock county, Tenn., and the copy thereof filed in the Harlan county court of Kentucky, be and are, stricken from the record herein, to which ruling of the court Rachael Berry, etc., appellees, except, and the counter motion of appellees to quash the said motion of appellants having been considered by the court, is overruled, to which ruling of the court the appellees except, and the court being sufficiently advised, it is adjudged by the court the decree of the Hancock chancery court, on file herein and offered as the supplied last will and testament of the said John Taylor, has neither been proven nor probated, so as to be a valid will of real estate and to pass the title thereto, under the laws of this commonwealth. It is therefore adjudged that the probate of the alleged last will, by the Harlan county court be, and the same is, set aside and held for naught. It is further adjudged by the court that appellants recover of appellees their costs herein expended, for which they may have execution. To all of which the appellees object and except, and pray an appeal to the Court of Appeals, which is granted." Afterwards, in due time, the appellants filed their motion and grounds for a new trial, and the same having been overruled, they were given until a day of the next term to prepare and present their bill of exceptions. No appeal was prosecuted from this judgment, nor has it been in any way modified or vacated. After the rendition of the judgment by the Harlan circuit court in the will proceeding, and in June, 1903, the appellees herein, averring that they were the legal heirs of John Taylor, who died intestate, brought this suit in behalf of themselves and all the other heirs of John Taylor (who were estimated to number about 500) against the appellants, who are Joseph Overton, the vendee of William Taylor, under the deed before mentioned, and the heirs at law...