Owsley v. Owsley

• Decision Date: 10 December 1903
• Citation: 117 Ky. 47,77 S.W. 397
• Parties: OWSLEY v. OWSLEY.
• Court: Kentucky Court of Appeals

77 S.W. 397

117 Ky. 47

OWSLEY v. OWSLEY.

Court of Appeals of Kentucky.

December 10, 1903

Appeal from Circuit Court, Cumberland County.

"To be officially reported."

Action by W. F. Owsley, Sr., against W. F. Owsley, Jr. From an order setting aside a judgment for plaintiff he appeals. Affirmed.

J. H C. Sandidge, Allen Sandidge, W. P. Sandidge, and Carroll &amp Carroll, for appellant.

Allen &amp Ewing, Hazelrigg & Chenault, and J. E. McMurtry, for appellee.

O'REAR J.

W. F. Owsley, Sr., a retired banker and merchant, and a man of wealth, owned and lived upon a farm of 235 acres on Cumberland river, near Burksville, Ky. The farm was well improved, and was then worth about $10,000. His family in 1874 consisted of his wife, single daughter, son (appellee), and mother-in-law. His wife was frail, and died about 1881. His mother-in-law was an invalid. The single daughter married Dr. Grant, and removed to Louisville in 1886. Appellant had only three children. Another daughter had married a Mr. Baker before appellant moved to the farm in question, and was living with her husband. The only son had never lived away from his father. He had been reared indulgently, and had all his life been the close companion of his father. The day he was 21 years of age, his father gave him $10,000 in secured notes, which were immediately redelivered by the son, with the request to his father to hold them, and collect and reinvest them, which was done. In October, 1874, the son married the daughter of an old friend and business associate of his father, and, at the latter's invitation, brought his wife to his home to live. The son claims that within a few weeks thereafter he and his father walked out on the farm one morning, when his father inquired of him his purpose as to a vocation in life. He answered that he wanted to engage in farming; that he was not qualified for anything else; besides, that was in accord with his taste. He says that his father expressed gratification at his choice, and thereupon told him that he would, and did then and there, give him that farm, and all its stock, and for him to take charge of it; that he did then and there assume charge and took entire control of the farm; that, upon returning to the house, appellant repeated in the presence of his wife and daughter-in-law what had occurred; that, continuously from that time to the present, appellee has occupied, used, and controlled that farm, laboring upon it and improving it, under claim of title, as his own, exclusive of all others. The father continued to live in the house. His wife lived there, too, till her death. His mother-in-law lived there till her death. His youngest daughter lived there till her marriage to Dr. Grant.

The son (appellee) began to handle horses. The father (appellant) suggested to handle them on a larger scale and of a finer quality. So they embarked in that business about 1887 under the style of W. F. Owsley & Son. The father claims he had no interest in that partnership; that he merely loaned his name to give credit to his son. The son claims that the partnership did exist; that he and his father agreed that the father would put into the enterprise the use of three other farms which he owned, lying adjacent to the home place, and the son agreed to put in the use of his farm, the home place that the father agreed to advance the necessary cash to conduct the business. It was continued about eight or ten years, and then abandoned. Whether it made or lost money is not clearly shown. An incident connected with the firm's bank account, in which the son took a position contrary to his father's views, and hostile to his interests, as he thought, produced strained relations between them about 1899. Up to that time all the expenses of running the farm, maintaining the family, even to clothing and schooling the son's children, were paid by appellant. Appellee claims that that occurred this way: That his father had the possession of all his money-- the $10,000 and its accumulations; that every dollar of produce and stock sold from the place was taken by him and delivered to his father, who made, or was supposed to make, proper entries of it on his books. The purchase price of horses and other live stock brought to the place was likewise paid by appellant, and when they were sold by appellee he handed the money to appellant. Appellee says his father was cashier, as it were, and was helping him in his business; telling him all the time that he was keeping an accurate account of all that he paid out for him, and that it would be charged against appellee in the final settlement and distribution of appellant's estate. The father's sagacity and success as a business man were well known, and appellee says he relied on these qualities as aid given him by his father; that the daughters had been abundantly provided for by similar gifts, aggregating from $30,000 to $50,000 each; and that he understood from his father that he was, by this conduct of his affairs, giving him an equivalent sum. Following the difference above alluded to, appellant refused to pay certain bills contracted for the family in the usual course, including the payment of the tuition and board of one of appellee's daughters at college, which appellant had been theretofore paying. Appellee's wife then said she would pay it, and for him (appellant) to charge it to her account out of her money that he had. Appellant denied that she had any money, and denied that either of them had any money or any other property. Appellee and his wife had evidently been under the impression that they had considerable property. So she brought a suit to compel an accounting by appellant of her estate which she says he had received for her from her former guardian directly after her marriage. The facts of that controversy and its result may be seen in an opinion this day delivered in the appeal of W. F. Owsley, Sr., v. Sallie A. Owsley, 77 S.W. 394. Thereupon appellant left the home, electing, so he says, to be dispossessed, and brought an action of ejectment against appellee to recover the possession of the home farm of 235 acres. The case came on to trial regularly before a jury, resulting in a verdict and judgment in favor of appellant. Upon that trial, appellee testified to the facts in his favor above stated. Appellant denied that he had ever given to his son the home farm, or that he had ever surrendered the possession of it to him. A great many witnesses were introduced, whose testimony tended to show that appellee had been in the possession, claiming the farm as his own, and that they had heard appellant during many years state that he had given the farm to his son, who was in possession and control of it. Appellee's defense relied upon an adverse possession for 15 years under the parol gift, thereby vesting him with the title to the land. So that the whole case turned upon the question of who was in fact in the possession of the place during the time from 1874 till the suit was filed in 1900. The fact that both appellant and appellee had during the whole time lived there complicated the question. The further fact that appellant paid all the expenses, including farm hands, servants at the house, for fuel, grocery bills, clothing bills, for repairs in the way of fencing, new buildings, etc., was, unless explained satisfactorily, crushing evidence to defeat the son's claim of possession. To offset that, appellee testified and proved that his father had the $10,000 mentioned of his (the son's) money in possession, and that it had been used in paying these very expenses. But it was shown that the money so paid out by appellant was largely in excess of the son's money which he held. This was explained by the son--that he also turned back to his father, as cashier, all money derived from sales of the produce of the farm and stock. Still, that fact, by itself, proved little or nothing, for it was not incompatible with appellant's claim of ownership and possession. Indeed, it proved about as much one way as the other. The son then claimed that some part of these expenses had been charged to his wife, whose money his father held. If appellant was using appellee's money and his wife's money in paying the family and farm expenses, it amounted to the fact that the family and farm were being managed and run by appellee, and not by appellant. But the amount expended exceeded in the aggregate both the son's and wife's personal estates which appellant had. Appellee also testified that his father at the time and at various times told him that he was giving him the sums so paid out for him; that they were in the nature of advancements, and would be, and were being, charged against his interest in appellant's estate; that in this way he was being equalized with his sisters. If this is true, it would amount to this: Appellant had given his son $10,000 in money, and paid out for him about $40,000 additional, net, which he at the time intended as, and which was in fact of the nature of, a settlement in life. It does not matter that the sums were paid out at different times and in small amounts. If the aggregate sum of $40,000 had been turned over to the son, and he had used it as it was used, it would not be questioned that it was his money, and that, in so employing it, he had defrayed his own expenses, and would thereby have tended strongly to prove his possession of the farm upon which it was expended. Or if the $40,000 had been turned over to the son in one lump, and he had intrusted it to his father precisely as he did the $10,000, and then the father, at his son's instance, had paid the latter's bills and accounts for managing and running the farm, it would be the same thing, in fact and in law, as if the son had done the paying in...