Vance v. Atherton

• Decision Date: 30 January 1934
• Citation: 252 Ky. 591
• Parties: Vance et al. v. Atherton et al.
• Court: United States State Supreme Court — District of Kentucky

252 Ky. 591

Vance et al. v. Atherton et al.

Court of Appeals of Kentucky.

Decided January 30, 1934.

1. Subrogation. — Where parents conveyed realty to son in consideration of agreement to support them, reserving lien to secure performance of agreement, daughter's petition to be subrogated to such lien for services rendered parents need not state cause of action against parents' estate.

2. Subrogation. — Volunteer who, with no legal obligation to do so, pays debt of another, is not entitled to subrogation.

3. Subrogation. — Where obligee, payee, or vendee is not in default or has not refused to comply with his obligation, subrogation may not be resorted to by party paying debt of another.

4. Estoppel. — Daughter and her husband suing to be subrogated to lien securing son's agreement to support parents held not estopped by laches where facts regarding estoppel were not pleaded.

5. Limitation of Actions. — Statute of limitation must be pleaded and cannot be raised by demurrer.

6. Limitation of Actions. — Limitation does not run against married woman under disability of coverture, notwithstanding statutes regarding wife's property rights, dower, curtesy, and conveyances (Ky. Stats., secs. 2127-2148).

7. Limitation of Actions. — That daughter, suing to be subrogated to lien securing son's agreement to support parents, was under disability of coverture during period of time involved, prevented running of statute of limitations as to her.

8. Subrogation. — As respects subrogation, in parents' deed to son, provision requiring son to support parents held not personal as to parents so as to preclude daughter's action to enforce provision of deed on son's failure to provide support.

9. Subrogation. — Subrogation is applied only when necessary to bring about equitable adjustment of claims founded on right and natural justice.

10. Subrogation. — Where parents conveyed property to son in consideration of son's agreement to furnish their support reserving lien to secure performance of agreement and son failed to provide support, daughter and her husband furnishing needed support held not volunteers and were entitled to be subrogated to lien to satisfy their claim for services (Ky. Stats., sec. 331f).

Doctrine of "subrogation" is pure equity, having foundation in principles of natural justice, and rests, not on contract, but on natural principles of right and justice, when applied to facts of the particular case, and includes every instance in which one who is not a volunteer pays the debt of another.

11. Subrogation. — Whether daughter's husband was entitled to be subrogated to lien securing son's agreement to support parents held immaterial in determining daughter's right to such subrogation (Ky. Stats., sec. 331f).

Appeal from McLean Circuit Court.

BARNES & SMITH for appellants.

HEAVRIN & MARTIN for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

John B. Atherton and Delila Atherton, residents of McLean county, Ky., were husband and wife and the father and mother of Stellar Vance and Lander C Atherton. In December, 1914, they conveyed to their son, Lander C. Atherton, their home, containing a residence and 30 acres of land. The deed recites a consideration of $100 cash, "and the further consideration that Lander C. Atherton would support, maintain and care for said John B. Atherton and Delila Atherton during the remainder of their lives," "and lien is retained on the property conveyed to secure the performance of the agreement heretofore mentioned." They continued to occupy the residence until the date of their deaths; John B. Atherton dying at the age of 85, August 17, 1920, and Delila Atherton on February 10, 1929, at the age of 81.

According to the allegations of the petition as amended, at the time the deed was executed and delivered to Lander C. Atherton, John B. Atherton was of unsound mind and remained of such mental capacity not to know or understand the nature and effect of the deed until the date of his death. He was a paralytic, with Bright's disease, and owing to his mental and physical condition, for seventeen months immediately preceding the date of his death required care and nursing "as though he were a child." He and his wife were without any means of support. Lander C. Atherton took possession of, and exercised authority over, the premises, except the dwelling, and appropriated to his own use the rents, issues, and profits arising therefrom, after the date of the deed. He declined and refused to provide support or to maintain either John B. Atherton or Delila Atherton. And from about August, 1915, at the special instance and request of Delila Atherton for herself and husband, to prevent them from suffering for the lack of food, clothing, nursing, and care, and in order that they might not become a charge on public charity, because Lander C. Atherton persistently failed and refused to carry out the provision of the deed, Stellar Vance and her husband, J.D. Vance, with the knowledge and acquiescence of Lander C. Atherton, rendered unto John B. Atherton and Delila Atherton needed services, and provided them with "sustenance, clothing, nursing, care, support and maintenance," in accordance with the provision of the deed and in reliance "on the charge made, and the lien retained on the 30 acres of land and improvements," for their compensation.

They brought this action against Lander C. Atherton and wife, Effie Atherton, setting up the foregoing facts, insisting they were entitled to be subrogated to the right of John B. Atherton and Delila Atherton to look to, and enforce, a lien on the land and improvements to satisfy their claim for services and the cost of providing them food and raiment. The court sustained a demurrer to the petition and entered a judgment dismissing it; hence this appeal.

It is here argued by Lander C. Atherton and Effie Atherton the petition does not set forth facts constituting a "meritorious" claim against the estate of John B. Atherton and Delila Atherton; the service contracted for "was personal to them for the purpose of securing care and maintenance from Lander C. Atherton"; the claim attempted to be set up in the petition as amended is barred by the statutes of limitation; they "are estopped by their own conduct and by their laches from maintaining the action"; they are volunteers and are not entitled to be subrogated to the lien reserved in the deed.

The petition as amended does not attempt to state facts, nor was it necessary for it to state facts, sufficient to constitute a cause of action against the estates of John B. Atherton and Delila Atherton. It contains allegations showing the execution and delivery of the deed, its acceptance and the provision thereof, the furnishing of food and raiment; the circumstances under which the services were performed; the extreme want of the parents and the absolute necessity therefor; and such other facts as are indispensable to bring their claim and right to enforce the lien on the land within the equitable doctrine of subrogation.

An interloper or a volunteer who, with no legal obligation to do so, pays the debt of another, is not entitled to invoke the equitable doctrine of subrogation. McQuerry v. Wilson, 50 S.W. 1099, 21 Ky. Law Rep. 112; Hodge Tobacco Co. v. Sexton, 166 Ky. 219, 179 S. W. 36; Jones v. Louisville Tobacco Whse. Co., 135 Ky. 824, 121 S.W. 633, 123 S.W. 307; Ill. Surety Co. v. Mitchell, 177 Ky. 367, 197 S.W. 844, L.R.A. 1918A, 931; Stewart v. Com., 209 Ky. 372, 272 S.W. 906; Huffman v. Martin, 226 Ky. 137, 10 S.W. (2d) 636.

Where the obligee, payee, or vendee is not in default or has not refused to comply with his obligation the doctrine of subrogation may not be resorted to by a party paying the debt of another. Eastern State Hospital v. Goodman, 155 Ky. 628, 160 S.W. 171.

As to the insistence that the Vances are estopped on account of their conduct, and laches, from maintaining the action, it is sufficient to say the facts advanced in support of this insistence do not appear other than in the brief of the Athertons. Facts constituting an estoppel must be pleaded. Ill. Canning Co. v. Livingston & Co., 201 Ky. 756, 258 S.W. 308. Also the statute of limitation must be pleaded. It cannot be raised by a demurrer notwithstanding earlier decisions of this court to the contrary. Lyttle v. Johnson et al., 213 Ky. 274, 280 S.W. 1102; Pool v. Pool, 214 Ky. 267, 283 S.W. 111; Rowe v. Blair, 221 Ky. 685, 299 S.W. 571. Furthermore, limitation does not run against a married woman under the disability of coverture, notwithstanding sections 2127-2148 Ky. Stats. Rowe v. Blair, 221 Ky. 685, 299 S.W. 571. The petition shows Stellar Vance was under the disability of coverture during the period of time mentioned therein, which was sufficient to prevent the running of the statute of limitation as to her. Dowell v. Gray Von Allmen Sanitary Milk Co., 221 Ky. 780, 299 S.W. 965.

The argument that the provision of the deed was personal as to the vendors for the purpose of securing their support and maintenance from Lander C. Atherton is unsound. Its provision may not be utilized to protect the latter in the breach of his contract to support and maintain...