140 Ky. 288 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
Appellee Dan Knott and his wife, Emily Knott, now deceased, in the year 1905, resided in that part of Nelson county known as the ‘‘knobs. ’’ Dan Knott was the owner of and in possession of about 380 acres of land upon which they resided. On the 29th day of September, 1902, he conveyed this land to his wife for the recited consideration of $19.97, cash in hand paid, “and for the further good, valuable and sufficient consideration, acknowl
There were many witnesses introduced, but not one of them stated that there was any mistake made in the preparation of the deed in giving the boundary of the land, except Dan Knott, and his evidence was wholly incompetent. This settles the case under the issues formed by the pleadings. Dan Knott only alleged his mental and feeble condition at the time of the execution of the conveyance as a cause for not discovering the mistake in the boundary. There was much testimony introduced as to his physical and mental condition immediately before and at the time the conveyance was executed. All agree that he was very feeble in body, but many said his mental condition was good and many that it was bad. A few testified that his wife controlled him in business matters. The contention that Dan Knott was compelled by the duress of his wife to execute the deed is not proved. The testimony shows that she was not present when the deed was executed at the county site. The officer who took his acknowledgment to the conveyance, stated that the old gentlemen appeared to be feeble, but that he could see nothing wrong with his mental condition. The claim of duress on the part of the wife was not made in the pleadings, nor did Knott attempt to avoid the deed in toto by reason of his feeble condition. He only sought to reform the deed so that it would include only the two tracts referred to. Three of the small surveys of the land which he askpd fo be excluded from the conveyance to his wife, were owned and possessed by Dan Knott for more than thirty years, and no one was claiming any part of either tract. It appears, however, that he had never obtained a title to them by conveyance, but, under the proof, his title to them by pur
It is our opinion that the conveyance by Dan Knott to his wife passed all the right and title he had in the property to her, subject to his marital rights, which included the tract that Mrs. Watson and William Ebney now hold by conveyance from Metcalfe, subject to the lien of Metcalfe for the unpaid purchase money, and as Mrs. Watson and William Ebney have paid that to Metcalfe, they are entitled to be substituted to the lien for $40, the amount they paid Metcalfe, and its interest.
It is reasonable to infer from all the facts in the record, that at the time of the conveyance by Knott to his wife and for some time prior thereto; he was physically very weak and they thought he would die first; that his intention in executing the deed was to provide for his wife’s support after his death. He was mistaken in this conclusion, however, as she died first, but this court has no power to correct this character of mistake.
For these reasons, the lower court erred in dismissing appellants’ action, and the judgment is reversed.