Todd's Heirs v. Wickliffe
| Citation | 57 Ky. 866 |
| Parties | Todd's Heirs <I>vs.</I> Wickliffe. |
| Decision Date | 06 February 1858 |
| Court | Kentucky Court of Appeals |
APPEAL FROM FAYETTE CIRCUIT.
J. B. Beck and E. W. Hawkins, for appellants —
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Geo. Robertson on the same side —
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M. C. Johnson, Tho. A. Marshall, Geo. A. Caldwell, and B. & J. Monroe, for appellee —
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R. W. Woolley, on the same side —
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In the month of October, 1826, Robert Wickliffe and Mary O. Russell intermarried. Both parties resided in Fayette county, Kentucky; the latter was a widow, who then owned several tracts of land; some houses and lots in Lexington, and sundry slaves, to all which she had a title in fee simple.
On the 12th day of September, 1827, Robert Wickliffe and his wife Mary O. Wickliffe, by their deed, conveyed all the real property and slaves which the said Mary O. owned at the time of her marriage, (excepting such land as was held adversely,) to Richard H. Chinn, who on the same day conveyed the same property back to Robert Wickliffe, for the consideration expressed in a tripartite deed of that date, to which said Chinn and both of the Wickliffe's were parties.
The latter deed witnessed, "that whereas, it was `verbally agreed between the said Robert Wickliffe `and Mary Owen Wickliffe, his wife, previous to their `intermarriage, that they would at convenient time, `make a proper disposition of the estate of the said `Mary Owen Wickliffe, and a portion of the estate `of the said Robert, by way of jointure or settlement `upon the said Mary, and by which the said `Mary Owen Wickliffe should be vested with the full `and entire power by her last will and testament to `emancipate or otherwise to dispose of any or all the `slaves and their descendants, of which she was possessed `at the time of her intermarriage, although `she might depart this life before the said Robert; `and that the beneficial interest in her real estate `should vest in the said Robert. And whereas, the `said Robert and Mary Owen Wickliffe, with a view `to effect their said understanding and agreement, `have on this day conveyed unto the said Chinn the `real estate of the said Mary, except such as is held `in adverse possession, and the said Chinn hath conveyed `the same to the said Robert Wickliffe in fee `simple, and with a view completely to carry the said `agreement into effect, it is hereby stipulated and `agreed between the parties, that the said real estate `and every part of it, so conveyed to the said Robert `Wickliffe, shall stand and be confirmed unto him `and his heirs and assigns forever. In consideration `whereof, and the further consideration of one dollar, `to the said Robert in hand by the said Chinn paid, `the receipt whereof is hereby acknowledged, he `the said Robert Wickliffe, doth covenant and agree `to and with the said Chinn, that he will stand seized `and possessed of the tract of land commonly called `the pond tract; being composed of a part of the `pond tract properly so called, and the Mansfield `tract, also of the Ellerslie adjoining thereto, also the `mansion house in which the said Wickliffe now resides `in the town of Lexington, together with the `lots within the same general inclosure which includes `the said house, to the use and benefit of the `said Mary O. Wickliffe during her natural life, and `in the event she should survive him the said Robert, `then to be held and occupied and enjoyed by her `for during the term of her natural life, free from all `sales, if any, which he might make without her consent, `and all his debts or creditors, hereby declaring `that the said Mary Owen Wickliffe shall, in lieu of `her dower in other lands, have, hold, and enjoy the `same, free of all impeachment of waste, to use at `her pleasure during her life, if she should survive `him, and then to pass to his heirs, devisees, or assigns; `and he doth further covenant and agree, that `in the event of his said wife surviving him, that `the whole of the slaves of which she was possessed `at the time of their intermarriage, together with the `descendants thereof, shall vest absolutely in the said `Mary Owen Wickliffe, and that he will not during `their joint lives, sell or dispose of any of said slaves `without her consent in writing first had; and the said `Wickliffe doth further covenant, that in the event of `his said wife departing this life before him, that `she may by her last will and testament or other `instrument in writing, liberate all said slaves, or `any of them, or by last will and testament to dispose `of them in any manner she may desire; and `for himself and his heirs, &c., he hereby covenants, `she shall have full power and authority, irrevocably `to make and publish a last will and testament, hereby `on his part ratifying and confirming the same in `relation to said slaves, and covenanting to be bound `and governed thereby; but nothing in this article `or deed is to be so construed, as to prevent the said `Wickliffe and wife, by their joint deed or other instrument `in writing, from liberating or otherwise `disposing of the said slaves, or any of them, nor to `prevent the said Wickliffe from controlling them as `his slaves during their continuance in slavery under `the said Wickliffe and wife, or either of them. `It is further understood, that the provisions in relation `to the slaves aforesaid, or the slaves Peter and `Jim, shall in no wise prevent the said Mary Owen `from her dower and distribution in the other slaves `and personal estate of said Robert Wickliffe; but `in the event of the said Robert dying intestate, or `making a will unsatisfactory to her, she is to have, `take, and enjoy her dower and distributive share in `his slaves and personal estate, inclusive of the `slaves aforesaid.
"In witness whereof, the parties aforesaid, set their `hands and affixed their seals, &c."
The same real estate and slaves was afterwards conveyed by Robert Wickliffe and wife, to William Owsley, who re-conveyed it to Robert Wickliffe, on the same day.
These two last conveyances were made, as it is alleged, to cure some supposed defect in the previous deeds. Mary O. Wickliffe died in the year 1844. This action was commenced in the year 1854, by persons claiming to be the heirs of Mary O. Wickliff, to set aside the before mentioned deeds, and for other relief, prayed for in the appellant's pleadings.
Appellants in the court below based their claim to the relief which they sought upon these grounds: 1st. The want of consideration to uphold the deeds. 2d. For want of legal authentication of the deeds. 3d. For the want of ability in the parties to contract in such form. 4th. Fraud in obtaining the deeds. 5th. For a failure of the consideration upon which the deeds were executed.
Robert Wickliffe, by his answer and amended answer, denied every material allegation in the appellant's petition and amended petition. Upon final hearing, the circuit court dismissed appellant's petition with costs, and they have appealed to this court; and now insist upon a reversal, upon the grounds above stated. We shall consider these grounds in the order in which they are stated.
First. The consideration stated in the tripartite deed, is a sufficient consideration, although not a large one. If Mary O. Wickliffe was capable of contracting, she was competent to judge of the sufficiency of the consideration, and had a right to convey her property to her husband, in this indirect mode, upon a small consideration, in property, or even upon the consideration of love and affection alone; or upon consideration of marriage; which seems to have been the moving consideration to the ante-nuptial agreement.
Second. As no objection was pointed out to the authentication of the deeds, either in this court, or the court below, we shall not further notice the second ground stated.
Third. As to the third ground, we deem it sufficient to say, that this court decided in the case of Scarborough vs. Watkins and Wife, 9 B. Monroe, 546, that a conveyance by husband and wife to a third person, of the real estate of the wife, for the purpose of being conveyed to the husband, to invest him with the estate of the wife, is valid, if made without coercion or undue influence of the husband.
Fourth. Upon the fourth ground, appellants insist, that constructive fraud existed, as evidenced by a conveyance of the wife's property to the husband, and that the burden of the proof is upon appellee to show that he acted fairly when he obtained a conveyance of his wife's lands. We admit, that where certain persons standing in certain relations to each other, trade, as where a trustee, obtain a conveyance from the cestui que trust, or a guardian obtains one from his ward, when such conveyances are impeached by the party who conveys, the law requires the fiduciary to prove that the transaction was fair, and advantageous to the person who under such circumstances conveyed. But we are not prepared to admit, that this rule ever applied to husband and wife, as by the ancient common law there could be no dealing at all between them. In process of time, however, a mode was invented in England, by...
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Hannaford v. Dowdle
... ... BY THE COURT ... This is ... an action by R. A. Dowdle and others as heirs at law of ... Juliette E. Hannaford, in the Conway Circuit Court in ... chancery against J. T ... by fraud, coercion or undue influence." To the same ... effect see Todd's Heirs v. Wickliffe, ... 57 Ky. 866, 18 B. Mon. 866 ... Appellant ... Hannaford testified that he ... ...