Stephenson v. Stephenson

• Decision Date: 05 March 1903
• Citation: 72 S.W. 742
• Parties: STEPHENSON v. STEPHENSON.
• Court: Kentucky Court of Appeals

72 S.W. 742

STEPHENSON v. STEPHENSON.

Court of Appeals of Kentucky.

March 5, 1903

Appeal from circuit court, Pulaski county.

"Not to be officially reported."

Action by Polly Stephenson against W. M. Stephenson. Judgment dismissing the petition, and plaintiff appeals. Reversed.

O. H Waddle, for appellant.

J. W Colyar and W. A. Morrow, for appellee.

SETTLE J.

The appellant, Polly Stephenson, widow of Jesse Stephenson deceased, became, by the death of a son, Riley Stephenson the owner, in fee simple, of an undivided one-half of several small and adjoining tracts of land in Pulaski county, the other half having descended to her husband, Jesse Stephenson, who was then living; but upon his death, which occurred at a later date, she became entitled to an estate for life in the whole of his undivided half of the lands mentioned, as a homestead, the same being worth less than $1,000. On October 6, 1900, she, by deed, conveyed the undivided one-half interest in the lands which had descended to her by the death of her son Riley to the appellee, W. M. Stephenson, also a son, for the recited consideration of $500, the payment of which was acknowledged in the deed. Soon after the conveyance of the land to him, the appellee with his family, consisting of a wife and several children, moved on the land and into the house which had been occupied by his mother; he having built for her another small house near by, which she was expected to occupy. Unpleasantness soon arose between appellant and appellee, his wife, and children, which caused her to leave the place, and thereafter to institute this suit in the Pulaski circuit court.

It is alleged in the petition that, although the deed acknowledged the payment of the entire consideration of $500, only $20 of the same had in fact been paid, leaving due her $480, which appellant promised to pay, but failed to do so. It is also averred in the petition that appellant is entitled to a lien on the lands conveyed to secure the payment of the $480. The petition closes with a prayer for judgment in her favor against appellee for the $480 and interest, for the enforcement of her lien, and, finally, for "all proper, general, and equitable relief." The answer admits the execution of the deed, and that only $20 of the $500 consideration named therein has been paid, but denies that $500 is the true consideration, and avers that the real consideration is the service he has performed, and is yet to perform, in caring for and supporting the appellant, who is admitted to be very old and feeble. The reply denies the material allegations of the answer.

After some of appellee's depositions were taken, appellant offered to file an amended petition, in which she asks the cancellation of the deed made to appellee, and the restoration to her of the land, if the court should be of opinion that the averments of appellee's answer are true. The chancellor refused to permit the amendment to be filed, to which appellant excepted. The trial of the case resulted in a judgment dismissing the petition; hence this appeal.

While the evidence in the case is conflicting, it shows that shortly after appellee and his family removed to his mother's house, disagreements arose between her and his wife and children, so serious and violent as to render it impossible for her to remain with or near them, or for either appellant or appellee to carry out the contract which he claims was the true consideration for the conveyance of the land to him. Appellant...