Spicer v. Holbrook

• Decision Date: 21 January 1902
• Parties: SPICER et al. v. HOLBROOK. [1]
• Court: Kentucky Court of Appeals

66 S.W. 180

SPICER et al. v. HOLBROOK. ^[1]

Court of Appeals of Kentucky.

January 21, 1902

Appeal from circuit court, Owen county.

"Not to be officially reported."

Action by Bettie Spicer and others against Jesse Holbrook to cancel a deed and to recover land. Judgment for defendant, and plaintiffs appeal. Reversed.

H. K Bourne and J. R. Fears, for appellants.

Lindsay & Botts, for appellee.

WHITE J.

The appellants are the heirs at law of F. A. Quisenberry deceased, and brought this action seeking to have canceled and declared void a deed purporting to have been executed by F. A. Quisenberry on the 30th day of January, 1883, to the defendant, Holbrook, and for the recovery of the land therein described. The grounds upon which it is sought to have the deed canceled and declared void are that it was procured by fraud, and that at the date of its execution, in January 1883, the said F. A. Quisenberry was non compos mentis, and had so remained till her death in 1893. A demurrer to the petition was overruled, and appellee answered, presenting a counterclaim in addition to his pleas. The answer pleads the statute of 10-years limitation as a bar to a cancellation of the deed, pleads adverse possession, and by way of counterclaim pleads that in 1873 the decedent, F. A Quisenberry, finding herself unable to pay for a tract of land purchased and held by title bond from D. S. Adams contracted with appellee that the bond should be assigned to him for the land, and appellee would pay the balance due Adams of the purchase money, and that appellee would execute to decedent, Quisenberry, a writing giving a right of redemption of the land, and a covenant to reconvey upon the payment to him of $1,100, it being alleged that this sum was due appellee for the sum paid Adams and for a balance of merchandise account; that the deed was executed by Adams to appellee; and that upon the execution of the deed of 1883--the one sought to be canceled-- the bond from appellee was canceled, and the debt of $1,100 satisfied. Appellee denied that at the date of the execution of the deed in 1883 F. A. Quisenberry was of unsound mind, or that she was overreached or defrauded, but pleaded by way of counterclaim the debt for $1,100, evidenced by the writing surrendered in January, 1883, in case the court should adjudge the deed of 1883 void. To this answer a reply was filed, pleading that the debt due appellee had been paid by decedent long before her death, and denying there existed any claim in favor of appellee; admitting, however, the facts pleaded as to the purchase from Adams by Quisenberry, the deed to the land to appellee, with the execution of the writing by appellee alleging that the balance of purchase money paid by appellee to Adams for decedent, Quisenberry, was $506.60, and that that sum had been paid, and that the balance of the $1,100 was for merchandise account due by the husband of F. A. Quisenberry, and that also had been paid. An amended petition was subsequently filed, pleading all these facts, and asking again a cancellation of the deeds to Holbrook, and for recovery of the land; all based on the alleged fact that F. A. Quisenberry was non compos mentis at the date of the execution thereof. An answer to the amended petition was filed, which but pleaded in detail the facts set out in the original answer and pleaded limitation. To this answer appellants filed general demu...