Parsons v. Justice

• Decision Date: 26 March 1915
• Citation: 174 S.W. 725,163 Ky. 737
• Parties: PARSONS ET AL. v. JUSTICE.
• Court: Kentucky Court of Appeals

174 S.W. 725

163 Ky. 737

PARSONS ET AL. v. JUSTICE.

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Pike County.

Partition by John Parsons and others against W. H. Justice. Judgment for defendant, and plaintiffs appeal. Affirmed.

Stratton & Stephenson, of Pikeville, for appellants.

J. J Moore and John F. Butler, both of Pikeville, for appellee.

CLAY C.

Richard C. Parsons, husband of Sarah Parsons, deceased, and John Parsons, Reuben Parsons, and Richard Parsons, children of Sarah Parsons, brought this action against W. H. Justice to recover an undivided one-ninth interest in a tract of 85 acres of land located in Pike county, and to have the land partitioned. Being denied the relief prayed for, they appeal.

The facts are these: During the year 1872 Reuben Thacker, Sr. died intestate the owner of a large boundary of land in Pike county. He left surviving him a widow, Malinda Thacker, and nine children. By appropriate proceedings had in the year 1874, all the decedent's lands, with the exception of a tract containing about 85 acres, which was assigned to the widow as dower, were partitioned among the children. After these proceedings were had, William A. Thacker (known as Ep Thacker) and Reuben Thacker, Jr., proceeded to buy the remainder interests of the other children in the dower tract. Ep Thacker claimed, prior to the year 1877, to have purchased the interests of his brother John A. Thacker and his sister Sarah Parsons. On February 12, 1877, Reuben purchased from Ep the latter's interest by a written contract by which the latter acknowledged payment of the entire purchase price, and agreed to make a deed. The writing does not describe the interest Ep claimed, but the consideration of $200 is shown to be more than the probable value of one share in the dower tract. Reuben acquired the interests of his other brothers and sisters, with the exception of Elisha. The latter sold his undivided interest to Abner Justice. After the death of the widow, which occurred in 1884, Abner Justice's interest was set apart to him, and is not now in controversy. By deed dated May 16, 1878, and not acknowledged until during the month of January, 1879, six of the nine children of Reuben Thacker, Sr., conveyed their interest in the dower tract to Reuben Thacker, Jr. This deed was duly recorded in Pike county, but the original deed has been lost. The recorded deed shows that Sarah Parsons and her husband Richard C. Parsons, signed and acknowledged the deed, though their names do not appear in the deed as grantors. There is some evidence to the effect that the record had been tampered with, and the names of Sarah and John Parsons written over the name of Thacker. Richard C. Parsons claims that neither he nor his wife ever signed or acknowledged the deed. The deputy clerk says that he took the acknowledgment of Sarah and Richard Parsons, but took them when their son John Parsons was a half-grown boy. He further says that he is confident that the names of Richard and Sarah Parsons appeared in the body of the deed. The evidence further shows that after the death of Reuben Thacker, Sr., Reuben Thacker, Jr., lived with his mother on the dower tract. She died in 1884. After the death of his mother, Reuben continued to reside on and cultivate the whole of the dower tract, with the exception of that portion set apart to Abner Justice. On July 22, 1895, Reuben sold the dower tract to defendant, W. H. Justice. The consideration was $4,500. Sarah Parsons died in the year 1891. Though she and her husband lived within a few miles of the dower tract, they never at any time claimed or asserted any interest in the tract. Reuben Thacker, the eldest child of Sarah and Richard C. Parsons, was born in the year 1878 or 1879. The record does not show when the second son, Richard, was born, but does show that the next child, John, was born in the year 1884 or 1885. This action was brought in the year 1912, or 21 years after the death of Sarah Parsons. At that time her oldest child was 33 or 34 years of age, while her youngest was about 28 years of age.

The chancellor held that Sarah Parsons and her husband actually signed and acknowledged the deed on May 6, 1878. We see no reason to dissent from this conclusion. In view of the fact that the clerk's certificate shows that Sarah and her husband actually acknowledged the deed, it is very probable that the writing of their names over the name of Thacker was due to the fact that the deed was signed by a number of the Thackers, and that the clerk wrote the additional Thacker names instead of the names of Parsons. This conclusion is confirmed by the fact that neither Sarah nor her husband was ever shown to have laid any claim to the dower tract after the execution of the deed. It is therefore probable that having sold their interest to their brother Ep, they merely joined in the deed for the purpose of passing the legal title. However, inasmuch as Sarah Parsons and her husband were not mentioned in the body of the deed as grantors, the deed to Reuben Thacker, which they merely signed and acknowledged, was ineffectual, and vested no title in him....