Waggener v. Howsley's Adm'r

• Decision Date: 14 April 1915
• Citation: 164 Ky. 113,175 S.W. 4
• Parties: WAGGENER v. HOWSLEY'S ADM'R.
• Court: Kentucky Court of Appeals

175 S.W. 4

164 Ky. 113

WAGGENER v. HOWSLEY'S ADM'R.

Court of Appeals of Kentucky.

April 14, 1915

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by L. A. Howsley, continued after her death by her administrator, against S. L. Waggener, with counterclaim by defendant. Judgment for plaintiff, and for defendant on his set-off, and defendant appeals, and plaintiff brings a cross-appeal. Judgment reversed upon both original and cross appeals, and cause remanded, with directions to set aside the judgment appealed from, and to dismiss the petition and counterclaim.

W. W Davies, of Louisville, for appellant.

O'Neal & O'Neal and John O. Arnold, all of Louisville, for appellee.

HURT J.

On November 27, 1891, Mrs. L. A. Howsley was the owner of a farm in Hardin county, Ky. She inherited one-half of this farm from her father, and the other one-half she had purchased from her sister. The price to be paid for the portion purchased by her from her sister was about $2,280, but she had paid no part of the purchase price, except $500, which she had borrowed from a bank, and to secure the loan had executed a mortgage upon the farm, and this sum yet remained unpaid. For the remainder of the purchase price she had executed notes, due and payable at different dates. She had also become the surety of her daughter, Mrs. Neff, for about $300, and owed store accounts and other debts to the amount of about $800. Her son, S. L. Waggener, the appellant here and who was her son by a former marriage, had from time to time furnished his mother with different sums of money, in all amounting to about $800, and for which he held her notes. Her husband, who was the stepfather of S. L. Waggener, was an old and decrepit man. To rid herself of this financial embarrassment, she entered into an arrangement with her sons S. L. Waggener and W. C. Waggener, by which she and her husband conveyed to them, on the 27th day of November, 1891 the farm upon which she lived, in consideration of they agreeing to pay off the indebtedness upon the farm, and her other debts, and to pay her $75 a year for each year she should live thereafter. She had a daughter at that time unmarried, whose name was Minnie, and who was a daughter by her then husband, and in this arrangement S. L. Waggener executed his note to his halfsister, Minnie, for $333, which was to bear no interest, and to be due at the mother's death.

Mrs. Howsley and her husband and daughter, Minnie, lived with the appellant upon the farm, and he took care of them and furnished them entirely, and paid to Mrs. Howsley the $75 per year specified in the deed, which she had made to her two sons for the farm, until during the year 1906, when she, upon the margin of the record book where the deed was recorded, executed a release to her sons of the further payment of the $75 per year. She claimed that this was done in consideration of the two sons promising to furnish her a house in which to live as long as she lived, the rental value of which should be $10 per month, but S. L. Waggener claims that the reason for the release was to enable her husband to secure an increase of his pension from $8 to $12 per month. Thereafter, in the year 1901, W. C. Waggener, in consideration of the payment to him by S. L. Waggener of $500, and the assumption by S. L. Waggener of the indebtedness, which they had agreed to pay, and any indebtedness which they had contracted, conveyed his interest in the farm to S. L. Waggener. There was incorporated in this deed, among other considerations, the provision that S. L. Waggener was to provide a house for his mother to live in as long as she lived. Since 1891, the appellant, S. L. Waggener, had paid all the debts which his mother owed, and which he had assumed, and also canceled the notes for $800, which his mother owed to him, and had provided his mother and stepfather with a home and a living up to the year 1901. About that time, at his mother's request, and in performance of the contract in the deed from his brother to himself, he bought a lot in West Point, Ky. and erected a nice cottage and necessary outbuildings, at a cost of $1,700 or $1,800, which he furnished to his mother and his sister, Minnie, who had before that time married a man named Lambert, in which to live. He paid the taxes and insurance upon the house and grounds, and his mother and sister, Mrs. Lambert, resided there for about two years. Mrs. Lambert's husband being engaged in work at Louisville, she concluded to move to the city of Louisville, and Mrs. Howsley sent for appellant, and informed him of the fact that Minnie was preparing to move away, and that she could not live there by herself, when, according to her contention, and that of her daughter, Minnie, she expressed the purpose to retain control of the house in West Point, and to let it to rent, and that appellant agreed that, if she would give him possession of the house, he would pay her board at the rate of $10 per month, at any place she desired to stay, and that she accepted this proposition. The appellant, however, says that he did not make any such agreement, but, when informed that Minnie was preparing to move to Louisville, that he then invited his mother to come and live with him, and said to her that he had at that time sold his home and was boarding, but was endeavoring to buy him a home, and, as soon as he should do so, that his mother would come and live with him, when Minnie proposed that inasmuch as he was going to pay his mother's board at Elizabethtown, until he secured another home for himself, to let the mother remain with her until he could secure a home, and to pay to her the $10 a month for her board during the time.

The appellant claims that, in the month of April following, he acquired a nice home at Glendale, and wrote to his mother to that effect, and requested her to come and live with him, but that she refused to do so, saying that she preferred to live with Minnie, and that he could continue to pay her the $10 per month, which he thereafter refused to do. The mother instituted this suit in the Jefferson circuit court to recover of the appellant the sum of $300, and the further sum of $10 per month, from the 4th day of August, 1906, during her natural life. The appellant answered, and pleaded that he had furnished his mother the home at West Point, and insisted upon her remaining there, and, when she refused to do so, he then offered her a home at his own house, which she refused to accept, without any good cause, and he had in this way fully complied with all of the obligations due her; and he further pleaded by way of set-off or counterclaim that, after purchasing the farm from his mother and his brother, he learned that an individual living in Arkansas was the owner of a one-sixth interest in the land, and also the owner of a one-sixth interest in another body of land adjoining it, and that, in order to make his title secure, he had purchased from this person the one-sixth interest in the farm he received from his mother, and in the same transaction acquired the one-sixth interest which this individual owned in the lands adjoining, and for which he paid the sum of $625, and that his mother, upon her warranty, was obligated to pay him the sum of $208 in reimbursement of the sums paid out by him to perfect his title.

After the proof in the case had been taken by way of depositions, the case was submitted for trial, when the court rendered a judgment in favor of appellee against the appellant, for the sum of $75 per year, from March 1, 1905, to December 19, 1912, the date of the death of Mrs. Howsley, which amounted to the total sum of $584.37. The court also adjudged that the appellant recover against the appellee, upon his set-off, the sum of $208.33, leaving a balance in favor of the appellee of the sum of $376.04, and also that appellee recover of the appellant all the costs which had accrued in the case. The appellant, from the judgment against him, appeals to this court, and the appellee, from the judgment against him, has taken a cross-appeal to this court.

The court...