284 S.W. 101 | Ky. Ct. App. | 1926
Affirming in part and reversing in part.
James B. Baker's first wife was Laura Combs. They had two children, Maurine Baker and James Baker. On November 16, 1918, Laura Baker and her husband, James B. Baker, conveyed to Lee Combs a lot 89 by 89, located in the town of Hazard. The caption of the deed is as follows: "This deed made and entered into this 16th day of November, 1918, by and between Laura Baker and her husband, James Baker of Hazard, Perry county, parties of the first part, and Lee Combs of Hazard, Perry county, Kentucky, party of the second part." After the description of the lot are these words: "Being the same lot conveyed to Laura Baker by R.C. Baker and others and recorded in deed book 39, page 456." On December 4, 1919, R.C. Baker and wife, Annie Baker, Johnnie M. Combs and wife, Mary Combs, A.B. Combs and his wife, Ollie Combs, and A.B. Combs as ex-sheriff of Perry county, conveyed the same tract of land to Lee Combs for a recited consideration of $965.00. Lee Combs mortgaged the property, and the proceeds were used to erect a residence on the lot. During the erection of the house Laura Baker died, and thereafter James B. Baker married Rachel Tye, by whom he had one child. Rachel Tye Baker organized the Hazard Poultry and Supply Company, and owned all the capital stock with the exception of 12 shares of the par value of $1,200.00, which were issued to Rachel Tye Baker as trustee for James B. Baker, and paid for by her. Thereafter there was erected on the lot a building which was occupied by the Hazard Poultry and Supply Company. In the construction of this building and of retaining walls on the back of the lot Rachel Tye Baker expended about $5,000.00, and there is further evidence that she expended about $325.00 on the erection of the dwelling house. James B. Baker died on March 10, 1922. Rachel Tye Baker continued to occupy the residence, while the storehouse was occupied by the Hazard Poultry and Supply Company. However, she qualified as guardian of Maurine Baker and James Baker, the infant children of James B. Baker by his former marriage, and they continued to occupy the residence with her until October, 1923.
On May 2, 1922, Rachel Tye Baker, as administratrix, and in her own right, brought this suit against Lee *8 Combs, the infants, Maurine Baker and James Baker, the Hazard Poultry and Supply Company, and certain mortgagees and lien holders for a settlement of the estate of James B. Baker, and an adjustment of the rights of the parties. It was alleged in the petition that Lee Combs had no interest in the property, but that it was conveyed to him in trust for James B. Baker. It was further alleged that Laura Combs, the former wife of James B. Baker, had expended of her own means about $800.00 in the erection of the house and was therefore entitled to an interest in the property to that extent. The mortgagees and other lien holders filed their claims. On final hearing it was adjudged that the property in question was held by Lee Combs in trust for Laura Combs Baker, and, upon her death, for her children, Maurine Baker and James Baker; that for occupying the residence Rachel Tye Baker should pay Lee Combs, trustee of Maurine and James Baker, rent at the rate of $35.00 a month, or the sum of $1,242.00; that for occupying the storehouse the Hazard Poultry and Supply Company should pay rent at the rate of $50.00 a month, or the sum of $1,755.00, to be applied in satisfaction of the debts of James B. Baker. Mrs. Baker was adjudged a lien on the storehouse for the amount she expended in its erection, and the storehouse was ordered sold separately and apart from the lot. She was also adjudged a lien on the 12 shares of stock in the Hazard Poultry and Supply Company, which she paid for and held in trust for her husband, and the stock was ordered to be sold. From that judgment this appeal is prosecuted.
1. We have read and re-read with great care all the evidence bearing on the ownership of the property. Though the former owners and Lee Combs testified to transactions with persons then deceased, they were not incompetent witnesses, for they testified for the infants, Maurine and James Baker, and not for themselves. Section 606, subsection 2, Civil Code. Schonbachler's Administrator v. Mischell,
2. As the property was held by Lee Combs in trust for Laura, her husband, James B. Baker, was entitled on her death to a life estate in one-third thereof. Section 2132, Kentucky Statutes. Ellis v. Dittey,
3. The judgment charges appellant with rent for the residence from the death of her husband, James B. Baker, on March 10, 1922. It appears, however, that she qualified as guardian of the infants, Maurine Baker and James Baker, and that they occupied the residence with her until October, 1923. There is also evidence tending to show that she paid off a claim against the residence for which a mechanic's lien might have been asserted. As this payment was for the benefit of the infants, and it was necessary for someone to occupy the residence with them and take care of them, we are of the opinion that appellant should not be charged with rent up to October, 1923.
4. Judgment was rendered against the Hazard Poultry and Supply Company for $1,755.00 for rent of the store house building. There being no appeal therefrom, this judgment must stand so far as the Hazard Poultry and Supply Company is concerned. However, the judgment directed that the money be paid to appellant as administratrix to be applied in the satisfaction of the debts of her intestate. As the chancellor held that appellant was the owner of the building, it seems to us that in a balancing of equities appellant, rather than the creditors of James B. Baker, is entitled to the rent of the building exclusive of the ground. On the other hand, the estate of James B. Baker, who was tenant by the curtesy, is entitled to only one-third of the ground rent up to his death, while the infant remaindermen are entitled to two-thirds thereof during that time. After his death the infant remaindermen are entitled to the whole of the ground rent. On the return of the case the chancellor will ascertain the reasonable rental value of the ground occupied by the storehouse, and divide this sum between the estate of James B. Baker and the two infant remaindermen as above indicated. The remainder, or the amount representing only the rent of the storehouse, he will award to appellant in her individual capacity.
Wherefore, so much of the judgment as adjudges the title to the lot in the infants, Maurine Baker and James Baker, and denies Mrs. Tye a lien on the lot for *11 improvements, is affirmed. In all other respects the judgment is reversed and cause remanded for proceedings not inconsistent with this opinion. The cost will be equally divided between Mrs. Rachel Tye Baker and the infants, Maurine and James Baker.