Sullivan v. Sullivan
| Decision Date | 08 March 1918 |
| Citation | 179 Ky. 686 |
| Parties | Sullivan v. Sullivan. |
| Court | Kentucky Court of Appeals |
Appeal from Hickman Circuit Court.
D. G. PARK, T. J. MURPHY, W. S. FOY and JOHN H. EVANS for appellant.
BENNETT, ROBBINS & ROBBINS and L. L. HINDMAN for appellee.
In the year, 1883, Edward P. Martin Company made to the appellant, James A. Sullivan, and the appellee, W. P. Sullivan, brothers, as grantees, a deed of conveyance, by which there was conveyed to them, jointly, a tract of eighty acres of land. In 1908 they executed to each other a deed of partition, by which there was conveyed to each of them, in severally, about forty acres of land. On the 21st day of April, 1915, W. P. Sullivan filed a suit, in ejectment, against James A. Sullivan to recover from him the possession of the portion of land, which William received in severalty, under the deed of partition, and to recover from him the rents of the land after the first day of January, 1915. James answered, traversing the ownership of William and his right to the possession, and affirmatively set up pleas in avoidance of the deed of 1883, from Edward P. Martin Company, and the deed of partition of 1908, so far as the deeds conveyed any title to William, and further, asked that if his pleas in avoidance were not sustained, that he should be adjudged a lien upon the land for the sum of $1,500.00, which he alleged, that he was entitled to recover from William for the increase in the vendible value of the land caused by valuable and lasting improvements, which he had placed thereon, and $150.00 for taxes, which he claimed, he had paid upon the land, since the year 1908. Issue was joined upon all the affirmative matters in the answer and counter-claim, and upon motion of James, the action was transferred to the equity side of the docket. The proof was taken by depositions, and upon the trial the chancellor decided all the issues adversely, to the contentions of James, dismissed his counter-claim, and adjudged, that William was the owner of the land and entitled to the possession, and awarded a writ of possession in his favor. From this judgment, James has appealed, and insists that the chancellor erred in his decision upon all the issues of fact, as well as the law pertaining to the facts. James contends, that the deed of 1883, executed to him and William, jointly, did not convey any title to William, because he, as alleged, refused to accept the deed and it was never delivered to him; that William never paid any part of the purchase money; that appellant accepted the deed, took possession of the land and held it adversely until 1908, and since that time, until the bringing of the suit; that he had, long before 1908, by his adverse possession become the sole owner of all the land; that the partition deed of 1908, by which a portion of the land was set apart and conveyed to William, in severalty, was executed and delivered without any consideration to support it; that he, James, was embarrassed with debts and to prevent his creditors from selling the land, or some portion of it, for their claims against him, that he secured William to enter into the partition deed with him, so as to conceal the portion of land, allotted to William from his creditors; that William knew of his fraudulent purpose and so accepted the deed, but with the understanding standing, that he was not to be the owner of the land, but was to fraudulently hold it for James, until the latter could satisfy his creditors.
(a). The first ground relied upon for reversal is that William refused to accept the deed made to them, jointly, in 1883, and hence never did have any title to any part of the eighty acre tract of land, and therefore the deed, of partition made between them, in 1908, was without any consideration passing from William to James for the portion of the land, which William received, in severalty, under the deed. James testified, that, he negotiated the purchase of the land from Edward P. Martin Company for the sum of $400.00, of which $133.33 was paid, in cash, at the time of the delivery of the deed by Edward P. Martin Company, and three notes were executed for the deferred payments; that the name of William was inserted as a joint grantee with him in the deed, by him, upon the suggestion of their father, and that he paid all the cash payment and executed the notes, signing William's name to the joint notes without authority from William, but upon the suggestion of their father; that he notified William of the facts before the delivery of the deed and that William expressly refused to assent to the transaction or to have anything to do with it, or to pay any part of the purchase price; that he received the deed and caused it to be recorded and took possession of the land as his own; that, thereafter, he paid the sum of $90.00 upon the purchase price, and in 1887, Edward P. Martin Company sued upon the unpaid notes, obtained a judgment against him and William for the amount of the notes, and for the enforcement of a lien upon the land, and that he, alone, satisfied the judgment. Upon the other hand, William testified, that he and James agreed to purchase the land; that he was present, when the deed was delivered and paid one half of the cash payment; that James signed his name to the notes for the deferred payments, not in his presence, but by his consent; that, thereafter, he paid one half of the remaining unpaid purchase money, including one half of the sum paid to satisfy the judgment upon the notes for the deferred payments. Evidence was given by their mother, brother, sister and brother-in-law to the effect, that from the time of the purchase of the land, in 1883, until the deed of partition was made in 1908, that James never claimed to own, only, an undivided one half interest in the land, and admitted that William owned the other undivided one half, and after the deed of partition was made, James did not assert claim to the portion of the land allotted to William under the deed, but said that it was owned by William. On two occasions before 1908, when James executed a mortgage upon the land to secure debts owing by him, he executed the mortgage upon one undivided half of the land, instead of the whole. James assessed all of the land for the year 1884 for taxation, in his own name, and paid the taxes for that year. Thereafter, the land was assessed in the name of their father, who lived upon it, and the father paid the taxes, until his death, in 1902. After 1902, the land was assessed for taxation in the name of their mother, who lived upon it and James testified, that he furnished her money to pay the taxes, while she testifies that she paid them, and whenever James, in person, had paid the taxes to the sheriff, that she had furnished the money with which to do same. William testified, that he was present, when the judgment on the notes for the deferred payments on the land was satisfied, and, that, he paid one half of it, and the receipt for the payments, which is in the record, is executed to them, jointly. From 1883, William had a family of his own and did not live on the land, but the father and mother and sister of appellant and appellee lived upon it and cultivated and used it. James was an unmarried man and made his home with the other members of the family upon the land, but does not seem to have engaged in working upon it, but very little. He erected a dwelling house upon the portion of it, which was allotted to him, in the partition, and made some repairs upon the family home, which was upon the land, in controversy, and did and caused to be done from time to time considerable work in the way of filling gullies, repairing fences and grubbing it off. The lands were rented every year and some of these contracts for their rental were negotiated by James, and when the rents were paid, they were sometimes paid to him and at other times to his mother, and on one or more occasions, when the rents were paid to James, in the presence of the mother, he turned over the money to her. William testified, that he had an arrangement with their father, that the father could live upon the farm with his family, and in consideration of the use of it was to pay the taxes, while James testifies that their father paid the taxes under an arrangement with him to that effect. William testified, that after the making of the deed of partition, he directed his mother to continue to use and occupy the house and land allotted to him under the deed, which she did, and that James continued to live there with her until he married, when he forced the mother to...
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