Whinery v. Crawford
| Decision Date | 26 April 1938 |
| Citation | 273 Ky. 325,116 S.W.2d 631 |
| Parties | WHINERY v. CRAWFORD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pulaski County.
Action in equity by Kate S. Crawford against Andrew J. Whinery to quiet title, wherein the defendant filed a counterclaim to establish title to a one-fifth interest in the property, and wherein the plaintiff filed a reply seeking to establish title by adverse possession to the one-fifth interest claimed by defendant. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Kennedy & Kennedy and R. C. Tartar, all of Somerset, for appellant.
B. J Bethurum, of Somerset, for appellee.
Appellee Kate S. Crawford, brought an action in equity in the Pulaski circuit court to quiet title to a parcel of land located in Somerset. In her petition, she alleged that she had the legal title to and was in actual possession of the house and lot thereinafter described, and that it was the same property conveyed to A. J. Crawford by Mrs. E. C. Crawford February 6 1909; that the defendant, A. J. Whinery, claimed a one-fifth undivided interest in the property under and by virtue of the will of Flora E. Crawford dated June 4, 1925, which contained this clause: "I will my one-fifth undivided interest in Mt. Vernon street home now occupied by my brother, A. J Crawford, to my nephew, Andrew J. Whinery, of East Orange, N. J."; that the deceased, Flora E. Crawford, had no claim or interest in said house and lot of land; and that the claim made by the defendant, under and by virtue of Flora E. Crawford's will, was unfounded and a cloud upon plaintiff's title. In an answer and counterclaim, the defendant alleged that he and the plaintiff were joint owners of the property; that she owned a four-fifths interest and that he owned the remaining one-fifth; and that these interests were acquired by the respective owners as follows:
The property was owned by John Crawford, who died intestate, leaving surviving him five children, including A. J. Crawford and Flora E. Crawford, each of whom inherited a one-fifth interest in the property; that A. J. Crawford purchased the interests of three of his brothers and sisters, and upon his death devised all of his property, including the four-fifths interest in the house and lot in question, to his wife, the plaintiff, Kate S. Crawford; that Flora E. Crawford died, leaving a will containing the provision set out in the petition and by which the defendant became the owner of her one-fifth interest. He asked that the property be sold, and the proceeds divided among the joint owners. The plaintiff filed a pleading styled "reply and counterclaim," in which she admitted that she acquired title to an undivided four-fifths interest in the property by devise from her husband, and that Flora E. Crawford inherited a one-fifth undivided interest upon the death of her father, John Crawford. As to the interest of Flora E. Crawford. As to the interest of Flora E. Crawford, she alleged that she and those under whom she claimed had acquired title thereto by adverse possession, and she asked that she be adjudged to be the owner thereof. The defendant filed a rejoinder traversing these allegations, and, at the same time, filed a motion to transfer the cause to the ordinary docket, which was sustained. The defendant later filed an amended answer, and thereafter he filed a motion to strike the plaintiff's reply because the cause of action set out therein was inconsistent with the cause of action set out in the petition, and because the cause of action set up in the reply could only be set up in an amended petition. This motion was overruled. The issues were completed by further pleadings, and, although the case had been transferred to the ordinary docket for the trial of an issue out of chancery, a jury was not called and proof was heard orally by the court. It was agreed by the parties that the oral testimony of the witnesses heard by the court, when transcribed by the official reporter, should be treated as the depositions of the witnesses. The court adjudged that the plaintiff, Kate S. Crawford, was the owner of the undivided one-fifth interest in the property claimed by Andrew J. Whinery, and the defendant has appealed.
Appellant insists that much of the testimony, particularly that of Mrs. Kate S. Crawford, was incompetent. We think his contention in this respect is correct, and we have eliminated such evidence in our consideration of the case. It is also argued that the motion to strike the pleading styled "reply and counterclaim" should have been sustained, since it contained matter, to wit, a plea of adverse possession, which, under the provisions of section 98 of the Civil Code of Practice, could only be pleaded in an amended petition, and therefore the plaintiff was not entitled to affirmative relief thereunder. This contention cannot be sustained. Even if it be conceded that the defendant did not waive the defect, if any, by filing a rejoinder and an amended answer before the motion to strike was filed, proof of title by adverse possession was admissible under the general allegations of the petition that the plaintiff was the owner of the property. Carter v. Terrell, 271 Ky. 449, 112 S.W.2d 687. The matter contained in the reply was not inconsistent with the petition, but was in avoidance of a defense stated in the answer, which is permitted by the Code. Early v. Early, 182 Ky. 757, 207 S.W. 466. See, also, Louisville Joint Stock Land Bank v. Bank of Pembroke, 225 Ky. 375, 9 S.W.2d 113; Rounds & Jesse v. Cloverport F. & M. Co., 159 Ky. 414, 167 S.W. 384, Ann.Cas. 1915D, 40; Ruffner v. Ridley, 81 Ky. 165.
The only question in the case possessing merit is one of fact and the correctness of the judgment rests entirely on the authenticity of a writing dated March 6, 1918, bearing what purports to be the signature of Flora E. Crawford, which appellant claims is a forgery. The evidence shows that the property in question was owned by John Crawford, and, upon his death, was inherited by his five children subject to the dower interest or homestead rights of his widow. A. J. Crawford, one of John Crawford's children, purchased the interests of three of his brothers and sisters, and he and his wife, the appellee, Kate S. Crawford, moved into the house in November, 1891, and lived there continuously until A. J. Crawford's death in 1930. The appellee has occupied the house since her husband's death. In 1896 A. J. Crawford filed a petition in bankruptcy, and his four-fifths undivided interest in the property was sold by the trustee in bankruptcy and purchased by his mother, who conveyed it back to him in 1909. On July 14, 1909, A. J. Crawford and his sister, Flora E. Crawford, executed a writing which recited that A. J. Crawford was the owner of an undivided four-fifths interest in the property located on the north side of Mt. Vernon street in the city of Somerset, known as the "Old John Crawford homestead," and Flora E. Crawford was the owner of the remaining undivided one-fifth interest. By this writing Flora E. Crawford leased to her brother, A. J. Crawford, her interest in the property so long as he continued to occupy it for an annual rental of $60, payable in semiannual installments on the first day of January and July of each year. Flora E. Crawford executed her will on June 4, 1925, which contained the provision heretofore quoted, devising her one-fifth interest in the property to her nephew, Andrew J. Whinery. A. J. Crawford died March 4, 1930, leaving a will dated April 17, 1922, in which he devised all of his property to his wife, Kate S. Crawford. Flora E. Crawford died in 1932, and Kate S. Crawford brought this action to quiet her title to the property on September 11, 1936. The appellee introduced a number of witnesses who testified that A. J. Crawford had lived in the house on the lot in question for more than forty years, and had always referred to it as his home. This evidence was wholly without probative value to establish title by adverse possession. ...
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