199 Ky. 431 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
• On October 6,1911, Mary Ann "Whittaker and her husband, Francis Whittaker, of Butler county, deeded their farm of 35 acres, a store of merchandise and all household goods and fixtures, to their son-in-law, S. A. Beliles,
“We, S. A. Beliles, principal, and C. V. Beliles and R. P. Beliles, sureties, bind ourselves, in the sum of four hundred dollars, Francis Whittaker and M. A. Whittaker, that S. A. Beliles will faithfully perform his part of the agreement to care for, support and maintain the said M. A. Whittaker and Francis Whittaker during the remainder of their natural lives in consideration of the fact that the said M. A. Whittaker and Francis Whit-taker have this day deeded to said S. A. Beliles their property, both real and personal.”
After living at the house of the grantee Beliles for several years, Mrs. Whittaker left and went to the home of a neighbor, living there some months before the commencement of this action. She instituted this action against Beliles and his sureties on the bond and others, praying a cancellation of the deed and a restoration of the property, and for damages on the bond, averring that appellant Beliles had violated the contract to support and take care of her, that he had refused to feed her or clothe her or furnish her medical attention, and had ill-treated her, striking her, kicking her and beating her and-driving her from his home.
Appellant Beliles and his associates answered and denied the alleged breach of contract and of the bond, and further pleaded that appellant Beliles had kept and performed his contract according to.its terms and that appellee Whittaker had wrongfully left his home and taken up her residence elsewhere against his will, and that he had provided for her while she remained at his home. The pleading also set forth that Beliles had sold 32% acres of the land to one Thatcher and that in conveying the land to Thatcher appellee Mary Ann Whittaker had
Issue being joined Mrs. Whittaker introduced evidence to prove the averments of the petition. She testified in her own behalf. Her testimony supports the averments of her petition that the appellant Beliles refused to provide for her according to the contract, and ill-treated her, striking her, kicking her and driving her from his home. She admits, however, in her testimony that she joined in the deed from appellant Beliles to Thatcher and received part of the consideration for that conveyance, though she says the conveyance was against her will. She also admits that she joined in the deed from appellant Beliles for the remaining 2% acres which he conveyed to another party, but she says that she did so against her will and under coercion, and that she received no consideration whatever for doing so; that Beliles and the grantee in the deed persuaded her to join in said deed and promised her that they would carry out appellant’s contract to support and care for her the balance of her days. She is corroborated in her evidence by one or more witnesses called in her behalf. Appellants introduced no evidence, because, as they say, time was not given in which to take depositions after the plaintiff concluded her proof.
The lower court, to whom the cáse was submitted without the intervention of a jury, adjudged Mrs. Whittaker recover of the defendants, S. A. Beliles and C. A. Beliles, the sum of $200.00 on the bond sued on, with six per cent interest from February 10, 1921, until paid; and further adjudged her entitled to recover the 2% acres which were conveyed by appellant Beliles with her jointly, but for which she received no consideration. Of this last paragraph of the judgment appellants bitterly complain. The original deed was made on October 6,1911, and was a valid and binding contract if carried out according to its terms; so was the bond upon which Mrs. Whittaker relies for indemnity. The question is: Can Mrs. Whittaker, who joined in the deed for the 2% acres, recover it in this action? The evidence as now presented clearly shows that there was no consideration passed from the grantee in the deed to Mrs. Whittaker, nor did she receive any from any source. She says that Beliles and the grantee
As appellant Beliles, it appears from the evidence now in the record, violated his contract to take care of Mrs. Whittaker, to board, clothe and care for her, she was entitled to recover upon the bond.
Appellants make several preliminary questions of more or less consequence. It is argued by appellants that the judgment was not made or entered in a regular or special term of court but in vacation, and this contention is supported by the order of the court. Court adjourned some time in February, 1921, and the judgment was entered by the court April 26, 1921, out of term time and when no court was in session in the said county. The orders so show. This court takes juridical knowledge of the terms of the circuit courts. It was not entered as a nunc pro tunc order. The judgment was not only made out of term time but likewise entered in vacation. Such order was a nullity and upon the filing of the mandate the trial court will set it aside and grant a new trial. Appellants should be afforded reasonable opportunity to' take proof. The other preliminary questions will perhaps not arise again, for which reason we pass them.
Judgment reversed.