Potter v. Potter

• Decision Date: 30 April 1918
• Citation: 180 Ky. 370,202 S.W. 872
• Parties: POTTER v. POTTER ET AL.
• Court: Kentucky Court of Appeals

202 S.W. 872

180 Ky. 370

POTTER v. POTTER ET AL.

Court of Appeals of Kentucky.

April 30, 1918

Appeal from Circuit Court, Letcher County.

Action by J. M. Potter against A. B. Potter and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Hazelrigg & Hazelrigg and J. P. Hobson & Son, all of Frankfort, and David Hays and F. G. Fields, both of Whitesburg, for appellant.

D. D Fields and R. M. Fields, both of Whitesburg, H. C. Faulkner of Hazard, and Ed. C. O'Rear, of Frankfort, for appellee.

CLAY C.

Plaintiff J. M. Potter, brought this suit against A. B. Potter, John Dean Stevens, and the Hamilton Realty Company to recover a tract of 150 acres of land located in Pike county, on the ground that the land was conveyed by Abraham Potter to A. B Potter in trust for plaintiff, and that John Dean Stevens and the Hamilton Realty Company purchased the property with notice of the trust. From a judgment in favor of the defendants, plaintiff appeals.

It appears that Abraham Potter died on May 13, 1913, age 75. He was survived by W. H. Potter, K. S. Potter, and Sarah Ann Brummett, children of his first wife, and by Albritton Potter, J. Martin Potter, Rebecca J. Addington, and Creed Potter, children of his last wife, Sarah, who also survived him. Creed Potter, after his conviction of a felony, escaped and has never been heard from since. On November 23, 1903, Abraham Potter, who was then about 65 years of age, conveyed to his son, A. B. Potter, for "love and affection," a tract of 150 acres of land. On the same day he conveyed to A. B. Potter another tract of land of 150 acres for the recited consideration of $10. The latter tract is the subject of this controversy. On May 23, 1913, a few days after Abraham Potter's death, A. B. Potter conveyed the tract in controversy to John D. Stevens for the recited consideration of $1, but for an actual consideration of $18,720. Thereupon Stevens conveyed the same tract to the Hamilton Realty Company, for the same consideration.

This suit was first brought by J. Martin Potter, W. H. Potter, K. S. Potter, Rebecca Addington, Sarah Ann Brummett, children, and Sarah Potter, widow of Abraham Potter, deceased, to recover the land in dispute on the ground that it was conveyed by Abraham Potter to A. B. Potter, to hold in trust for Abraham Potter. After the proof had been taken, J. Martin Potter filed an amended petition alleging that the conveyance to A. B. Potter was made in trust for him, and that Stevens and the Hamilton Realty Company purchased with notice of the trust. At the same time, the other plaintiffs filed an amended petition disclaiming any further interest in the land and withdrawing from the action.

According to the evidence for plaintiff, he went on the land about the year 1895 and remained there until the year 1900, under promise from his father that he was to have the land. He then got into some trouble with his wife, and, placing his children in the care of his father, went to the state of North Carolina, where he remained five or six years. W. H Potter, a half-brother of J. Martin Potter and A. B. Potter, and who took the acknowledgment of the deed, says that his father Abraham Potter, told him that he wanted the land to go to Martin, who was then in trouble; and that, if Martin ever settled down, he wanted him to have it, but, if he did not, he wanted his children to have it. He further said that A. B. Potter afterwards admitted to him that he held the land in trust for Martin. On another occasion he tried to buy the land for the company, when A. B. Potter stated that it was his father's land and he would deed it back to his father, but they would have to pay him what they owed him. K. S. Potter testified that his father talked to him of deeding the property to his brother, Henry Potter, in trust for Martin. After that his father told him that he had decided to deed it to "Brit"; that he thought Brit would deed it over to Martin when the latter got out of trouble with his wife. Brit told him that, if Martin or they would pay him $350, he would deed the land to his mother. Rebecca Addington, a sister, who was 12 years old when the deed was made, says that she heard her father and W. H. Potter discussing the deed when the former signed it, and that "he finally decided to make it to A. B. Potter in trust for Martin Potter." She further stated that A. B. Potter was not present when the deed was signed and acknowledged by Abraham Potter, and that A. B. Potter on one occasion told her that they wanted him to deed the land to Martin, which he declined to do, but that he would make a deed to his mother and father. John H. Addington, husband of Rebecca, testified that, after the sale to Stevens and the Hamilton Realty Company, A. B. Potter wanted to know if his mother had heard of the sale, and stated that if Martin, Rebecca, and his mother wanted to do the right thing about it, he would do them right. Sarah Potter, the mother of Brit Potter and Martin Potter, stated that her husband wanted A. B. Potter to deed the land back to J. Martin when the latter returned from North Carolina. A. B. said that he would deed it to her, but not to Martin. She further testified that her understanding of the agreement between her husband and A. B. Potter was that A. B. was to deed it back to her husband when he wanted it. David Hays, an attorney who represented the Holbrooks in a boundary suit against Abraham Potter and A. B. Potter, stated that during the proceedings A. B. told him that he could prove, by his father and every brother and sister that he had, that his father had no interest in the land, but that it was conveyed to him (A. B. Potter) for his brother Martin. William B. Holbrook, who was present when this conversation occurred, testified to the same effect. Isaac Potter, Jr., a nephew, testified that Abraham Potter told him that Brit had gotten a deed of trust on Martin's place to protect Martin from his wife. Matilda Potter stated that Abraham Potter told her that he had been to see Brit to get him to deed the property over to Martin, but that Brit would not do it, and he did not think Brit would treat him that way. Jane Potter Rogers, a granddaughter of Abraham Potter, said that she had often heard him say that he had deeded the land to Brit for Martin. It was also shown that, in the settlement of the boundary suit between A. B. and Abraham Potter and the Holbrooks, A. B. conveyed to the Holbrooks four or five acres of land after he...