Scott v. Scott

• Decision Date: 14 March 1919
• Parties: SCOTT ET AL. v. SCOTT ET AL.
• Court: Kentucky Court of Appeals

210 S.W. 175

183 Ky. 604

SCOTT ET AL. v. SCOTT ET AL.

Court of Appeals of Kentucky.

March 14, 1919

Appeal from Circuit Court, Pike County.

Suit by Daisy Scott and others against John W. Scott and others. From part of the judgment, defendants John W. Scott and wife appeal, and from another part thereof, defendants Crit Scott and wife prosecute a cross-appeal. Affirmed on cross-appeal and reversed, with directions, on original appeal.

Childers & Childers, of Pikeville, for appellants.

Roscoe Vanover and Willis Staton, both of Pikeville, for appellees.

CLAY C.

This is the second appeal of this case. The opinion on the former appeal may be found under the title of Scott v Scott, 172 Ky. 658, 190 S.W. 143.

On November 30, 1891, Crit Scott conveyed a tract of land in Pike county to his wife, Pricy Scott, and her bodily heirs by Crit Scott. On January 20, 1902, Pricy Scott and Crit Scott conveyed the same land to John W. Scott and wife by deed containing a covenant of general warranty, and purporting to convey the fee-simple title. Thereafter Daisy Scott and others, children of Pricy Scott and Crit Scott, brought suit against John W. Scott and wife to correct the record of the deed of November 30, 1891, from Crit Scott to his wife, and to quiet their title to their remainder interest in the land. On the hearing below, the petition was dismissed, but on appeal it was held that the plaintiffs were entitled to have the record of the deed corrected, and their title to the remainder interest quieted. At the same time the court declined to pass on the liability of Pricy Scott and Crit Scott under their covenant of warranty, or on the question of waste and improvements, but remanded the case, with directions to the chancellor to consider and pass on these questions after the parties had been given an opportunity to take further proof, if they desired. On the return of the case, further evidence was heard as to the amount of timber cut and removed by John W. Scott and wife. On final hearing plaintiffs were given judgment against the defendants John W. Scott and wife, for the sum of $200 for timber cut and converted to their own use. John W. Scott and wife were given judgment against Crit Scott for the sum of $175 for costs and attorney's fees incurred in defending the title conveyed to them by Crit Scott and Pricy Scott. It was further adjudged that Pricy Scott's life interest in the $1,000, paid as consideration for the land in controversy, was worth $702.50, and for the balance of $297.50, with 6 per cent. interest thereon from January 20, 1902, until paid, John W. Scott and wife were given judgment against Crit Scott and were awarded a lien therefor on the land purchased by Crit Scott with the purchase money and conveyed to Pricy Scott. The claim of John W. Scott and wife for improvements was disallowed. From that part of the judgment, denying their claim for improvements and adjudging plaintiffs a recovery of $200 for timber cut, and awarding them only the sums of $297.50 and $175 for breach of warranty, John W. Scott and wife appeal. From that portion of the judgment awarding John W. Scott and wife the sum of $297.50 and a lien on the land of Pricy Scott, Crit Scott and Pricy Scott prosecute a cross-appeal.

The only evidence as to the amount of timber cut and removed by John W. Scott and wife is that prior to the suit he cut 42 trees, of the value of $1 per tree, and that after the suit was brought he cut 47,565 feet of lumber, worth $2 per thousand in the tree, or the sum of $95.13. Under this proof, plaintiffs were entitled to recover $42 plus $95.13, or the sum of $137.13, and no more, and it was error to render judgment in their favor for $200.

John W Scott testified that the costs and counsel fees, incurred in defending the title, amounted to $209, and there is no evidence to the contrary. The chancellor seems to have proceeded on the theory that, as a portion of this cost was incurred in resisting the correction of the deed, Crit Scott should not be held liable on his warranty for...