Saylor v. Helton

• Decision Date: 14 March 1922
• Citation: 238 S.W. 405,194 Ky. 195
• Parties: SAYLOR v. HELTON.
• Court: Kentucky Court of Appeals

238 S.W. 405

194 Ky. 195

SAYLOR v. HELTON.

Court of Appeals of Kentucky.

March 14, 1922

Appeal from Circuit Court, Garrard County.

Action by Granville Saylor against Nancy Helton. From judgment rendered, plaintiff appeals. Affirmed.

R. H Tomlinson and L. L. Walker, both of Lancaster, for appellant.

J. E Robinson, of Lancaster, for appellee.

SAMPSON J.

For many years before March, 1911, James I. Helton and his wife Nancy Helton, owned and resided on two adjoining tracts of land in Leslie county, Ky. They decided to sell out and buy land in Garrard county. They were then very old and had no children nor descendants. After contracting their lands in Leslie county to one Wilson for $2,000, James I. Helton came to Garrard county and entered into a contract for the purchase of a tract of about 180 acres from one Johnson and wife at the price of $2,500. Both deals were closed, deeds made, and entire purchase price paid in 1911. Wilson took possession of the Leslie county lands under his purchase, and the Heltons moved to and took possession of the Garrard county lands. The next year James I. Helton died intestate survived by his wife, Nancy, and several brothers and sisters and some neices and nephews being his heirs at law. Soon thereafter appellant (plaintiff below), Granville Saylor purchased, from brothers and sisters of Helton and the descendants of such of them as were dead, a one-half undivided interest in the Garrard county lands, supposed to be that part which James I. Helton owned in the tract bought from Johnson. While the deed to Saylor referred to the portion purchased as one-half of the Garrard county lands, it undertook to convey all the interest which the said heirs had in and to said tract of land. After obtaining his deed, Saylor instituted this action against Nancy Helton, the widow, for a partition of the lands, averring that she was the owner of a one-half undivided interest therein, and entitled to dower in the other one-half undivided interest. About this time a motion was entered to place the lands in the hands of the master commissioner as receiver to rent or lease and hold the proceeds subject to the further orders of the court. This motion was sustained and the lands leased by the commissioner. From this order Saylor appealed to this court and the judgment was reversed. See opinion Saylor v. Hilton, 190 Ky. 200, 226 S.W. 1067.

In the meantime Granville Saylor filed an amended petition in which he averred that he was the sole owner of the tract of land in question, and that the widow, Nancy Helton, had only a dower interest therein. She filed answer controverting the claim of Saylor to the entire tract, but acknowledged he was the owner of a one-half undivided interest, but set up claim in herself to the other one-half undivided interest as well as dower in the half interest claimed by Saylor; that, if the deed was not sufficient in form to vest her with a fee to a one-half undivided interest in said land, then she asked a reformation of the deed. To this answer, in so far as it sought reformation, Saylor pleaded the statute of limitation. The case was then prepared and submitted, and after argument of counsel was concluded, the defendant, Nancy Helton, at the suggestion of the trial court, filed an amended answer, counterclaim, and cross-petition, by which she averred that she was the owner of a one-half undivided interest in the lands and a dower interest in the other one-half interest, and--

"That she did not discover the mistake in the said deed from Sam Johnson and others to James I. Helton and Nancy Helton until the _____ day of August, 1919, and that she could not have so discovered the said mistake by the exercise of ordinary diligence and effort; that during the lifetime of her husband the deed was construed by her husband, James I. Helton, and herself to convey the title, equally and jointly to herself and her husband, James I. Helton."

That the plaintiff, Saylor, as well as all of the other persons interested in the land, had construed the deed to convey the tract of land jointly and equally to defendant Nancy Helton and her husband, James I. Helton, and that she could not read or write, and did not know that there was any defect in the deed, or that there was any contention that she did not own one-half undivided interest in the land, until the plaintiff filed his second amended petition in August, 1919, and, if there was a mistake in the deed by which she was conveyed less than a fee in one-half of the said land, said mistake was first discovered by her on the filing of plaintiff's amended petition in August, 1919, and could not have been sooner discovered by her by the exercise of ordinary diligence. The affirmative averments of this answer, counterclaim, and cross-petition were controverted of record and the case again submitted. The chancellor entered a decree reforming the deed so as to express the intention of the parties to it, and giving to the defendant, Nancy Helton, one-half undivided interest in the tract of land and dower in the other one-half undivided interest. From this judgment Saylor appeals.

The deed from Johnson and wife to James I. Helton and Nancy Helton, bearing date April 8, 1911, is so indefinite and uncertain in its terms as to cause confusion and to give rise to the claim of appellant Saylor to the whole tract of land, which claim resulted in this particular branch of the litigation. In so far as it is relevant, the deed from the Johnsons to the Heltons reads:

"This deed of conveyance made and entered into this 8th day of April, 1911, by and between Sam Johnson and Sarah Johnson, his wife, of Garrard county, Kentucky, grantors, and James I. Helton and his wife, Nancy Helton, of Leslie county, Kentucky, grantees, witnesseth:

"That for and in consideration of the sum of twenty-five hundred ($2,500.00) dollars to grantors, cash in hand paid, the receipt of which is hereby acknowledged, do sell and convey unto grantee, his assigns and heirs a certain tract of land lying and being in Garrard county, Kentucky, on the waters of Harmon's Lick creek, and bounded as follows:" (Here follows description.)

"The said grantees are to have and to hold the land herein described with all its appurtenances thereon to him, the said James I. Helton and his heirs and assigns forever."

It will be observed that the deed in its granting clause names "James I. Helton and his wife, Nancy Helton, of Leslie county, grantees." This is definite and certain, but in the same sentence is the following: "do sell and convey unto grantee, his heirs and assigns"--which makes the granting clause somewhat indefinite and uncertain, for it would appear from the last phrase quoted that there is but one grantee, and that such person is masculine. The...