Swinebroad v. Wood

• Decision Date: 31 October 1906
• Citation: 97 S.W. 25,123 Ky. 664
• Parties: SWINEBROAD ET AL. v. WOOD ET AL.
• Court: Kentucky Court of Appeals

97 S.W. 25

123 Ky. 664

SWINEBROAD ET AL. v. WOOD ET AL.

Court of Appeals of Kentucky.

October 31, 1906

Appeal from Circuit Court, Lincoln County.

"To be officially reported."

Action by Maggie S. Wood and another against Kate B. Swinebroad and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Wm Herndon and Robt. Harding, for appellants.

G. B Swinebroad, W. S. Burch, and M. C. Saufley, for appellees.

NUNN J.

Greenberry Bright was a man in good financial circumstances, and owned between 1,500 and 2,000 acres of valuable land in Lincoln county. He had four or five children, the appellant Kate B Swinebroad being one of them. In the latter part of the year 1882 he purchased 200 acres of land at the price of about $2,000, and placed his daughter, Kate, with her husband and two children, in possession of it, and they have been in the actual possession of it ever since, except the year 1886, when they rented and occupied a small farm in that vicinity. The cause of this break in their possession was the destruction of their home by fire in the year 1885. In the year 1886, Greenberry Bright took possession of the farm, and had it cultivated, according to appellants, as tenant, at the price of $1,000, less the taxes of $60. Appellees claim that he took the possession of it as his own, and the $1,000 was given to his daughter Kate. In the month of July, 1893, Greenberry Bright made the following deed to his daughter Kate, and her children, and it was recorded in the month of September, 1896: "This deed of gift made and entered into this 11th day of July, 1893, between Greenberry Bright, grantor, and Kate Swinebroad and her two children, Maggie Swinebroad and G. Bright Swinebroad, grantees, Witnesseth: That in consideration of the love and affection I bear my daughter Kate Swinebroad and her children, I do hereby grant, bargain and convey unto the grantees above named a certain tract of land situated in Lincoln county, Ky. on the Hanging Fork of Dix river, containing about 200 acres, it being the same tract of land I purchased of Samuel Engleman and James Engleman, and evidenced by deed of conveyance now of record in the Lincoln county clerk's office. Do give, grant and convey the same to the grantees to have and to hold jointly until some cause of division may arise by the death of the said Kate Swinebroad or otherwise, then to go to her children equally. Given under my hand this 11th day of July, 1893." Mr. Bright died in the month of December, 1896. Mrs. Swinebroad and her children never knew that this deed was in existence until the year 1897. Kate says that when she first learned that there was such a deed she repudiated it. Maggie says she accepted it, and the son, G. Bright Swinebroad, says he accepted it with the understanding that it conveyed to his mother, Kate, a life estate, and the remainder to him and his sister, Maggie, in equal portions.

In the month of January, 1904, the appellee Maggie Wood instituted this action for a division of the land, giving her one-third thereof, and to recover of her mother and father one-third of the value of the rents from her grandfather's death in 1896, amounting to about $2,000, including interest. The appellant answered, controverting all the allegations of the petition, and averring that her father gave her the land, in 1883, as an advancement, and that she took possession of it as the owner, and had held it under the gift continuously, uninterruptedly, adversely, and against the claims of all persons, from that time to the date of her answer, a period of more than 20 years. In another paragraph she alleged that she was ignorant of the deed, herein copied, or of any claim that her father had or claimed in the land during her occupancy of it; that she and her husband, believing that it was hers, made lasting and valuable improvements thereon, describing same, and which increased the salable value of the land to the extent of $6,000, and asked that, in the event the appellee recovered a third of the land, she, appellant, be adjudged a lien for one-third of the cost of the improvements as against appellee's third; or that the improvements be set off against appellee's claim for rent. By another paragraph she alleged that the deed referred to did not speak the mind or intention of her father; that it was his intention to, and he attempted to, convey to her a life estate in the whole tract, and remainder in equal shares to her two children, the appellee and her co-appellant, G. Bright Swinebroad. During the pendency of the action, and before trial, she, appellant, withdrew this last paragraph of her answer. The answer of G. Bright Swinebroad contained several paragraphs. By the first he controverted the allegations of the petition; second, he averred that the vendor, his grandfather, intended to, and did, convey, and when properly understood and construed, it should be adjudged to convey, to his mother, the appellant, the whole of the land for and during her natural life, and the remainder in fee to himself and sister, the appellee. The court sustained a demurrer to this paragraph, and overruled a demurrer to the following paragraph, in which he alleged, in substance, that if the deed failed to convey the land to his mother for and during her natural life, with remainder to him and his sister, then the deed does not express the intention of the grantor therein, and does not convey the land in accordance with his intention and wish with reference thereto; nor is it in accordance with his instructions to the draftsman; that, if the deed conveys to the grantees any other interest or estate in and to the land than a life estate to his mother, and the remainder to himself and sister, then the deed does not express the intention of the grantor, but was a mistake of the draftsman of the deed; and asked the court to correct the mistake, and reform the deed so as to convey all the land to his mother for life, and remainder for him and his sister, the appellee. The appellee by consent controverted the affirmative matter of G. Bright Swinebroad's answer.

The court tried the case, which resulted in the following judgment: "The court adjudges that under and by virtue of the deed of Greenberry Bright of the date July 11, 1893 and recorded September 22, 1896, to Kate B. Swinebroad, G. B. Swinebroad and Maggie Swinebroad (now Maggie S. Wood), the plaintiff Maggie S. Wood is entitled in fee simple to one-third (1/3) undivided interest in and to the land mentioned in the petition and described in said deed; that G. B. Swinebroad is entitled to one-third (1/3) undivided interest in fee simple in and to said land, and that Kate B. Swinebroad is entitled to a life estate in one-third (1/3) undivided interest in said land with remainder in fee to the plaintiff, Maggie S. Wood, and the defendant G. B. Swinebroad. The court further adjudges that the defendant Kate B. Swinebroad is not the owner of said land by parol gift, advancement, or adverse possession, or in any way, and their answer and counterclaim is dismissed, to which the defendant Kate B. Swinebroad and G. B. Swinebroad except. The court in construing that phrase of said deed of Greenberry Bright, to wit: 'To hold jointly until cause of division may arise by the death of said Kate Swinebroad, or otherwise,' is of the opinion that the words 'or otherwise' are without force, and therefore adjudges that the plaintiff had not manifested a right to partition during the life of Kate B. Swinebroad, and refuses to order same. It is further adjudged that the defendant G. B. Swinebroad has not manifested a right to have aforesaid deed of Greenberry Bright reformed, and refuses to adjudge a reformation, and the first and second and third paragraphs of his answer are dismissed, to which the defendant G. B. Swinebroad excepts. It is further adjudged that the plaintiff Maggie S. Wood recover of the defendants, Kate B. Swinebroad and G. B. Swinebroad, the sum of twelve hundred and six dollars and 23/100 ($1,206.23) with 6 per cent. interest thereon from this date (July 3, 1905), and her costs herein expended, for which fi. fa. may issue. This aggregate sum is made up of the following items for the rents and profits of the land, to wit: $240.24 as of January 1, 1900; $241.27 as of January 1, 1901; $242.17 as of January 1, 1902; $241.94 as of January 1, 1903; and $240.61 as of January 1, 1904." A like judgment was given in favor of G. Bright Swinebroad for...