Wilson v. Hall

• Decision Date: 20 November 1912
• Citation: 150 S.W. 823,150 Ky. 663
• Parties: WILSON et al. v. HALL.
• Court: Kentucky Court of Appeals

150 S.W. 823

150 Ky. 663

WILSON et al. v. HALL.

Court of Appeals of Kentucky.

November 20, 1912

Appeal from Circuit Court, Leslie County.

Action by S. M. Wilson and others against William Hall. From a judgment for defendant, plaintiffs appeal. Reversed and remanded, with directions.

J. M Bicknell, of Hyden, D. K. Rawlings, of London, and H. M Brock, of Hyden, for appellants.

Cleon K. Calvert, of Hyden, for appellee.

CLAY C.

On the 1st or 2d day of October, 1897, Hiram Fee was arrested and placed in the Leslie county jail at Hyden, Ky. on the charge of having murdered one Robert Asher. He employed J. M Bicknell and Judge William Lewis, members of the Leslie county bar, to defend him. Their fee was fixed at $150. To secure them in the payment of the fee, Hiram Fee and wife executed and delivered to them a mortgage on the tract of land in controversy. Bicknell and Lewis performed the services contemplated by their contract of employment. On December 26, 1898, they brought suit in the Leslie circuit court to enforce their mortgage lien. The land was sold, and appellants became the purchasers. Subsequently a deed was executed to them by the master commissioner of the Leslie circuit court. In the fall of 1904 appellee, Hall, began to cut and remove the timber from the land in question. On November 24, 1904, appellants brought this action against appellee to restrain him from trespassing on the land. Appellee answered, denying appellants' title, and pleaded title in himself. Appellants filed a reply, pleading that appellee and wife had executed a deed to the land to Hiram Fee, and that this deed had been burned before it was recorded; that appellee was in Hyden prior to the time the mortgage was executed, and stated to Messrs. Bicknell and Lewis that he and his wife had made the deed to Fee and wife and that it would be all right for them to take the mortgage; that, by reason of these facts, appellee was estopped to claim the land. On the first trial of the case the chancellor rendered judgment in favor of the appellee. On appeal to this court the judgment was affirmed. Wilson et al. v. Hall, 101 S.W. 889. Thereafter appellants brought suit against Hall for the purpose of securing a new trial. They alleged in their petition that, after the affirmance of the case, they had learned for the first time of several witnesses by whom they could prove that Hall had made the deed to Hiram Fee and that the deed had been burned in Hiram Fee's house. Hall filed an answer controverting the allegations of the petition. Proof was taken, and on final hearing the trial court granted a new trial. From that judgment an appeal was prosecuted to this court. In that proceeding appellants proved by John Fee, a brother of Hiram Fee, that Hall and wife in the year 1896 executed, acknowledged, and delivered to Hiram Fee a deed to the land in controversy. R. L. Fults testified that he saw the deed. Speaking of the evidence given by these witnesses, this court said: "The testimony of the witnesses is so circumstantial that it impresses one with its sincerity, and, if the deed was made to Hiram Fee, it was not Hall's land." The judgment granting the new trial was affirmed. Hall v. Wilson, et al., 116 S.W. 244. On the return of the case additional testimony was taken, and on final hearing the chancellor entered judgment in favor of appellee. From that judgment this appeal is prosecuted.

The proof in the case as now presented is, in substance, as follows:

J. M Bicknell and William Lewis both say: That they were employed to represent Hiram Fee. They were to receive $150 for their services. Not desiring to undertake the employment until their fee was secured, they approached Hiram Fee on the subject of security. He stated that he owned the tract of land in question. That appellee and his wife had deeded the land to him and his wife, and that the deed had been burned when his house was destroyed. Appellee was in Hyden before the examining trial, and consulted them several times with reference to the defense of his son-in-law. In order to assure themselves that Hiram Fee's statements were correct, they talked to appellee with reference to the deed. He stated, in substance, that he had made the deed in question, that the title was in Hiram Fee and his wife, who had a right to make a mortgage, and that the attorneys need not be afraid to take the mortgage. Their statement is corroborated by the evidence of L. D. Lewis, who claims to have been present when the conversation took place. Lillie Witt, who stayed with G. W. Morgan at the time Hiram Fee was in jail, says that he saw appellee in...