44 Ky. 152 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
This bill was filed by Catharine Bartlett, for the purpose of obtaining dower in a tract of 600 acres of land, which had been conveyed by her deceased husband, Joel Bartlett, to the defendant, Gouge, during the coverture. The claim was resisted, on the ground that Bartlett had held the title only in trust for Gouge, and had no benificial interest in the land, which would entitle the widow to dower. And whether this ground is sufficiently made out to authorize the decree dismissing the bill, is the only question in the case.
It appears, that as early as 1815, Gouge was living on the land, and the legal title being then in the heirs of Bernard Todd, residents ofVirginia, Philip G. Todd, one of those heirs, who was attorney in fact for the three executors of Bernard Todd, authorized by his will to sell the land, contracted with Gouge for the sale and conveyance of said 600 acres, at the price of fifty cents per acre, and gave him a bond for conveyance, when the price should be paid, of which one half was then received. The bond contains the following description of the land, viz: Beginning at the west corner of the original survey, at a white oak, sugar tree and linn ; thence with a line of the same, north 50 east, crossing the Dry Ridge road, and • continuing the course so far as will include said. Gouge’s improvement; thence such a course as shall eross the road at the south end of said Gouge’s improvement, and continuing that course to Meriwether’s line of said tract.
Bartlett seems to have been a clock-pedlar, resident in Virginia, but w'ho came frequently to Kentucky in the way of his business, and seems to have been here in 1828. In 1829, he received a deed from Philip G. Todd,
It is said that the bond of Todd to Gouge, is not properly evidence in the case, because it was objected to, and its execution was not proved. But on lookinginto the pleadings and the exceptions to the bond as evidence, we are of opinion that it was not intended to question its genuineness which is impliedly admitted, but to question its relavancy and effect, and on this ground its admissibility as against the complainant. Besides this, its genuineness derives confirmation from several circumstances apparent on its face, from a comparison with the deeds subsequently made, and from the fact that the land by the same description, was conveyed by Todd to Bartlett in 1829, and by Bartlett to Gouge in 1833, for a consideration greatly below its value.
Why was Gouge suffered to remain in possession so long by the title holders ? And why did Bartlett, a clock-pedlar, domiciled in Virginia, but itinerant in his business and character, purchase in 1829, a tract of land which had been in the possession of another for many years ? Did he seek a home for permanent residence ? He was not then married, and he never before or after marriage, indicated a disposition to settle on this land, or even in Kentucky. Besides, he knew the land was already the home of another, and that in attempting to appropriate it, he would be involved in a law suit. Did he buy the
Wherefore, the decree is affirmed.