Phillips v. Big Sandy Co.

• Decision Date: 01 October 1912
• Parties: PHILLIPS et al. v. BIG SANDY CO.
• Court: Kentucky Court of Appeals

149 S.W. 957

149 Ky. 555

PHILLIPS et al. v. BIG SANDY CO.

Court of Appeals of Kentucky.

October 1, 1912

Appeal from Circuit Court, Pike County.

Action by John E. Phillips and others against the Big Sandy Company. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

C. M Whitt, of Williamson, W. Va., O'Rear & Williams, of Frankfort, and Roberson, Langley & Cooper, of Pikeville, for appellants.

Butler & Moore, of Pikeville, for appellee.

CARROLL J.

In June, 1882, Jessie Phillips deeded to Frank Phillips a tract of land. This deed was put to record in July, 1882, and the recorded paper recites this condition: "This deed is to Frank Phillips; if he should die without children, this land shall go to his child by the Rowe woman; if land be sold for any debt of Frank Phillips, then the land goes to his children if he has any, and if he has no children then to the said child he has by the Rowe woman."

In 1907 the children of John E. Phillips, he being then deceased brought a suit in equity against the Big Sandy Company, which company was a remote vendee of Frank Phillips. In this suit they asserted that the deed in question only conveyed to Frank Phillips a life estate in the land described in the deed, and charged that the Big Sandy Company, as a remote vendee of Frank Phillips, was in the possession of the land claiming the fee-simple title thereof; and they sought to recover the possession of the land upon the ground that Frank Phillips only had and could convey in the land a life estate, and that at his death the remainder in fee descended to them as his children.

To this petition, which only involved the proper construction of the deed, a general demurrer was interposed by the Big Sandy Company, and the lower court, being of the opinion that the deed vested the fee in Frank Phillips, dismissed the petition. From the judgment dismissing the petition, the children of Frank Phillips prosecuted an appeal to this court, and in an opinion that may be found in 32 Ky. Law Rep. 1262, 108 S.W. 276, this court affirmed the judgment of the lower court.

The matter thus rested until 1909, when this action was brought by the children of John E. Phillips against the Big Sandy Company to recover possession of the land upon the ground that the deed from Jessie Phillips to Frank Phillips, after it had been executed and delivered, had been altered in the following material respects: They averred that the condition in the deed as it was written, and when the deed was executed and delivered, read as follows: "This land is deeded to Frank Phillips; if he should die without children, this land shall go to John E. Phillips; this conveys a life interest to Frank Phillips and cannot be sold by him, and should the land be sold for any debt of Frank Phillips, then the land goes to his children, if he has any or if he has no children then to the said John E. Phillips"--but that the deed had been altered by some person unknown to them, and at a time they were unable to fix the date of, so that the recorded instrument contained the condition hereinbefore set out.

The Big Sandy Company for defense to this action, after putting in issue the question of the alteration of the deed, set up and relied on the plea of res judicata as a bar to the action. After the case had been prepared for hearing, it was submitted to the lower court, and a judgment entered, dismissing the petition, and from this judgment the children of John E. Phillips prosecute this appeal.

The first question to be considered is: Did the plea of res judicata present a good defense to the action? The suit brought in 1907 by the children of Frank Phillips against the Big Sandy Company to obtain a construction of the deed was between identically the same parties plaintiff and defendant as the suit, charging the alteration of the deed, that we are now considering. In the first suit the children of Phillips did not question the correctness of the recorded deed. They rested their cause of action upon the ground that under the condition in the recorded deed Frank Phillips only took a life estate in the land. In other words, the only question presented in the first suit, and the only question that could have been or was decided in that suit, was whether or not, under the condition in the deed, Frank Phillips took a life estate or the fee. In the suit now before us, the construction of the deed is not in issue. The only question presented by the pleadings is: Was the deed made by Jessie Phillips to Frank Phillips altered after its execution and delivery? It is very true that the parties plaintiff and defendant were identical in each suit, and that the relief sought in each suit was the same. The only difference between the two actions being that in one the children of Phillips sought to recover the land upon the ground that the deed, when properly construed, vested them with an estate in remainder; while in the other they sought to recover the land upon the ground that the deed had been altered. It will be at once observed that there is no similarity in form or substance between the issues presented in these two actions. They are as different as grounds of complaint could well be. The alteration of the deed which is the subject of the second action did not have any connection with or relation to the subject-matter of the first action.

But notwithstanding this, it is insisted by counsel for appellee that the judgment in the first action, which has never been modified or vacated, presents a complete bar to the successful prosecution of the second suit. In support of this position, we are referred by counsel to a number of cases decided by this court, in which the principle upon which the doctrine of res judicata rests has been announced. The leading case by this court upon this subject is Davis v. McCorkle, 14 Bush, 746, in which it is said: "Where a given matter becomes the subject of litigation in an adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence, or even accident omitted a part of their case. The plea of res judicata applies not only to the point upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."...