Wilson's Guardian v. Wilson

• Decision Date: 24 March 1899
• Citation: 50 S.W. 260
• Parties: WILSON'S GUARDIAN v. WILSON et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 260

WILSON'S GUARDIAN v. WILSON et al. ^[1]

Court of Appeals of Kentucky.

March 24, 1899

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by J. D. Hinton, guardian of Virginia M. Wilson, against Virginia M. Wilson and others, to set aside a deed. Judgment for defendants, and plaintiff appeals. Reversed.

L. J Moore, for appellant.

Morton & Darnell and Falconer & Falconer, for appellees.

GUFFY J.

On the 19th of February, 1897, the appellant, J. D. Hinton, guardian of Virginia M. Wilson, filed his petition in the Fayette circuit court against Virginia M. Wilson, John B. Wilson Charles Wilson, and Kentucky University. It appears from the petition that said Hinton was on the 14th of March, 1896 duly appointed and qualified as guardian for Virginia M Wilson. It is substantially alleged in the petition that his said ward, on the 31st of August, 1895, was seised in fee of an undivided one-half interest in a certain lot or tract of land in the city of Lexington, the boundary thereof being given; that on said day the said infant, who was at the time only 17 years of age, by deed of that date, undertook to convey her undivided one-half interest in said real estate to John B. Wilson, her father, and at the time she so signed and acknowledged said deed she was an infant under 21 years of age; that she did not understand the nature of the instrument, and that there was no valuable consideration for her undertaking to convey the property; that the undivided interest of said infant in said property is worth $2,000 or $3,000, and was worth that amount in August, 1895; that said deed is recorded in the Fayette county clerk's office, in Deed Book 106, at page 529; that said deed is a cloud on said infant's property; and that said deed by said Virginia M. Wilson to John B. Wilson is void, and was void at the time it was made. It is further alleged that, since said conveyance, defendant John B. Wilson has executed a mortgage to the defendant Kentucky University, and that said mortgage is also void, so far as it conveys the interest of said infant's estate; that defendant Charles Wilson also claims to have an execution lien on same property, which is also void. Wherefore plaintiff prayed that the conveyance of the real estate herein by the said Virginia to her father, John B. Wilson, be set aside and held to be void, and that defendants Kentucky University and Charles Wilson be made parties, and that these alleged claims against the infant's property be set aside and be held to be void as to the undivided one-half interest of said Virginia in the real property aforesaid.

The answer of the defendant Charles Wilson substantially shows that he was security for John B. Wilson on certain debts in Bath county, and at the suit of J. J. Nesbitt, receiver, judgment was rendered against him and John B. Wilson, which judgment was replevied, with one Smoot as security; that afterwards defendant Charles Wilson paid the replevin bond, and took an assignment thereof, upon which he had execution issued both to Bath and Fayette counties, which, it is alleged, was returned "No property found"; that on June 14, 1894, the property mentioned in the petition was conveyed to John B. Wilson; and that in July, 1894, said Wilson, for the sole consideration of love and affection, conveyed the same to his two daughters, Annie G. and Virginia M. Wilson, which conveyance was made subject to a mortgage to one S. S. Ellis, in the sum of $2,562, which had theretofore been executed by the said John B. Wilson. It is further alleged in the answer that the conveyance by John B. Wilson to his daughters was made after he became indebted in the sum aforesaid to Charles Wilson, and that the same is therefore void as to the debt of defendant Charles Wilson. It is further alleged that on the 11th of November, 1895, after the return of the execution upon said replevin bond in defendant's favor, he instituted an action in equity in this court, which is now pending under the style of "Charles Wilson vs. John B. Wilson et al.," wherein this defendant sought to enforce the satisfaction of his debt upon said replevin bond, to which action the daughters of said John B. Wilson were made parties defendant; that subsequent to the filing of the said petition this defendant discovered that upon the 31st of August, 1895, and prior to the filing of said original petition in said suit, the said Annie G. and Virginia Wilson, daughters of said John B. Wilson, had executed and delivered to said John B. Wilson a deed conveying to him the property mentioned, in which the daughters had represented themselves to be unmarried and over 21 years of age, and that, upon being informed of this fact, this defendant caused another execution to be issued upon said bond, which was by the sheriff duly levied upon the right, title, and interest of John B. Wilson in said property; that this defendant also discovered, after the filing of his original petition in the action aforesaid, that the Kentucky University had loaned said Wilson $3,500, and taken from him a mortgage upon said property, which mortgage lien is paramount and prior to the execution lien of this defendant; that upon the 13th day of January, 1896, this defendant, by leave of court in said action, filed an amended petition, whereby the Kentucky University was made a party, and under the decree of this court in this action said property was ordered to be sold for the satisfaction of the debt of this answering defendant, and also for the payment of the paramount debt of the Kentucky University; that, relying upon the representations of the daughters aforesaid in said deed to their father, stating that they were over 21 years of age, this defendant sought by the amended petition in said action to subject said property to the payment of his debt, as being the property alone of said defendant John B. Wilson. And said answer pleads that Virginia M. Wilson and John D. Hinton are estopped from denying that her title did not pass to the said John B. Wilson, and it pleads and relies upon said deed as a bar and estoppel in equity against the plaintiff and the said Virginia. The said suit of this defendant against John B. Wilson, now pending in this court, is referred to and made part of this answer. It is also claimed in the answer that, if the deed from said Virginia to her father should be held to be inoperative, still the original conveyance to her was without valuable consideration, and therefore void as to this defendant's debt.

The answer of the defendant Kentucky University sets up the execution of the deed from Annie G. and Virginia M. Wilson of date August 31, 1895, to John B. Wilson, containing the recitals aforesaid; that it relied upon the same, as it had a right to do, and loaned to John B. Wilson the sum of $3,500, for which sum Wilson executed and delivered the mortgage upon the real estate in question, and executed his note for the sum of $3,500, due one year after date, with interest thereon at the rate of 7 per cent. per annum from October 18, 1895, until paid, the interest to be due and payable semiannually; that it had the title examined, and, relying alone upon the recitals in said deed and the truth thereof, it loaned said $3,500 to said John B. Wilson, and but for the recitals in said deed, and believing same, it would not have made the loan aforesaid; and that said Virginia Wilson, as to it, is estopped to show that she was not at the time of the making of the deed over 21 years of age. The further averment is made that on the 14th of June, 1894, the said property was conveyed by Charles Gaiteskill, etc., to John B. Wilson, by which John B. Wilson became invested with a perfect title to the same, and that on the same day he and his wife mortgaged the same to one Samuel S. Ellis to secure the payment of the sum of $2,562.65, which sum was used by the said John B. Wilson to pay said Gaiteskill for said property, which mortgage to Ellis was due in six months, and bore interest at the rate of 6 per cent. from date, and was a valid lien upon said property at the time it was conveyed by said Wilson to his daughters; that afterwards, on the 18th of October, 1895, the said...