Smith v. Upton

• Decision Date: 10 May 1890
• Parties: SMITH v. UPTON.
• Court: Kentucky Court of Appeals

13 S.W. 721

SMITH v. UPTON.

Court of Appeals of Kentucky.

May 10, 1890

Appeal from circuit court, Butler county.

"Not to be officially reported."

B. L D. Guffy and John L. Scott, for appellant.

H. T Clark, for appellee.

HOLT J.

July 2 1853, H. H. Smith executed to James B. Upton what is in form an absolute deed, but which was in fact but a mortgage upon three tracts of land that composed the home farm, of about 180 acres, of the grantor. His wife, Helen Smith, did not unite in it. August 2, 1856, Smith and wife, in settlement of the debt owing to Upton, conveyed to him absolutely all of the land, save about 80 acres; and upon the same day he conveyed this 80 acres to Mrs. Smith and her children. There had then been born to her and her husband seven children, and another was born thereafter. One died intestate and without issue before the death of the father. Another died prior to the death of the mother. She devised all her interest in the 80 acres of land to one child. In this action, brought by some of the heirs asking a sale of it, her devisee claims that, under the deed from Upton, she and her children took by classes; she being entitled to onehalf of it, and they to the other half. It is contended, upon the other side, that she took but a life-estate, with remainder to the children. The conveyance was to "Helen Smith, wife of Henry H. Smith and her children." It is urged upon the part of the devisee of Mrs. Smith, in support of the claim that the title to one-half of the land vested in her, that the consideration for it was the relinquishment by her of her potential right of dower in the land conveyed to Upton. Such a relinquishment may constitute a valuable consideration for a settlement upon the wife by the husband; but the deed makes no mention of any such consideration, and there is no averment of any mistake or fraud in its execution. The intention of the parties is to be gathered from the language of the deed; it is to be read in the light of the surrounding circumstances and the relation of the parties. While the nominal grantor in the deed was not the husband of Mrs. Smith, yet, in construing it, it should be regarded as if it had been made by him. In equity, the title was really in him. The first deed to Upton was in fact but a mortgage. The absolute deed to him was made at the same time that the deed was made to Mrs. Smith and her children. It is evident that it was the husband providing for his wife and children. She was named in it as "Helen Smith, wife of Henry H. Smith." The land mortgaged to Upton appears to have been ample to secure his debt without any release by Mrs. Smith, because it is proven that the portion left, after paying him by the conveyance of a part of it, is worth eight or nine hundred dollars. It was the home place of H. H. Smith, and what more natural than that he should wish his wife to have the use of it for life, and it then to pass to his children? If the husband makes provision for the wife and children, an intention should be presumed upon his part to give the whole of it to her for life, remainder to the children, unless a contrary purpose appears from the terms of the provision, or the circumstances attending it. ...