199 Ky. 4 | Ky. Ct. App. | 1923
Opinion of the Court by
— Affirming.
On April 20, 1888, Henry Clay, who resided in Bourbon county, executed his will. Within a short time thereafter he died the owner of a large body of land in that county and on July 7, 1890, his will was probated. In it he devised his land to his three children jointly, the appellant, Lettia Clay, George Clay and Joseph II. C'lay, and as to the shares of his two children, George and Letitia, he provided ££in the event of the death of either George or Letitia Clay without children each to inherit their lands of the other so far as received from me.” The land so devised consisted of about nine hundried acres and after the probate of the will a suit was brought-for its partition among the three devisees. The copimissioners allotted lot No. 1, containing 293 acres 3 roods
On December 3,1912, the same two parties exchanged deeds from the one to the other in each of which the above quoted provision of the will of Henry Clay was recited and reference made to the deeds of October 30, 1891, and they further contained this recital: “Whereas, it is desired by each of the said parties, namely: George Clay and Letitia Clay, to own in fee simple and without restriction the lands devised to each by the will of their father, Henry Clay, Now, therefore,” etc. Those recitations and reference, were followed by a regular quitclaim deed of conveyance of all the interest which the one had or claimed to own in the devised land of the other with the expressed purpose of relieving each of their portions of the executory devise imposed by their father’s will in favor of the other, so that each might hold their respective portions by absolute and unfettered title.
On March 1, 1913, George Clay sold for a valuable consideration his tract to appellee and defendant below, Brooks Clay. At the latter’s request appellant and plaintiff below, Letitia Clay, joined in the deed of conveyance made by George Clay to his vendee, the defendant, Brooks Clay. The obligation of plaintiff in that deed is thus, recited therein: “The first party, Letitia Clay, has heretofore, by the deeds above referred to, conveyed to the first party, George Clay, all right or title to which she might have succeeded in said real estate under the will of her father, Henry Clay, but for greater certainty and definitenes. she is made a party hereto, and united herein, to sell, assign, transfer, quitclaim and convey to second party, his heirs and assigns, all right, title or interest owned by her, or to which she might ever succeed under the will of her said father, Henry Clay. And to this extent the said first party, Letitia Clay, warrants specially, and not generally, the title herein conveyed.”
In August, 1913, George Clay, upon inquisition, was adjudged a person of unsound mind and plaintiff was
Appropriate pleadings made the issues, and upon extensive preparation the court set aside the deed of March 1,1913, from which the defendant therein, Brooks Clay, who is also the 'present defendant, prosecuted an appeal to this court, and the judgment was reversed on February 26,1918, in the case of Clay v. Clay’s Committee, et al., reported in 179 Ky. 494, and the cause was “ remanded with directions to dismiss, the petition.” The mandate was filed and a judgment entered dismissing the petition against both plaintiffs as directed by this court in its opinion. At that time George Clay was alive and lived until September 28, 1919, when he died unmarried and without children.
On October 29, thereafter, plaintiff brought this equity action against the defendant, Brooks Clay, seeking to recover the same tract of land by virtue of her defeasible remainder interest created in it by the will of her father upon the death of her brother, George Clay, without children or other remote descendants, and. for cause she alleged that her brother, George Clay, by his threats, force and duress compelled her to execute the
The answer, as. amended, in addition to a traverse alleged affirmatively as defenses, (1) the execution by-plaintiff of the various deeds hereinbefore recited; (2)-pleaded the statute of limitation in bar of plaintiff’s right to contest either of them, and (3) pleaded the judgment and proceedings in the case of Clay v. 'Clay’s Committee, in bar of the action. The demurrer filed by plain-' tiff to the answer as amended was overruled and she declining to plead further, her petition was dismissed, from which judgment she prosecutes this appeal. The parties have assumed and proceeded on the theory that the quoted provision from the will of Henry Clay by which a defeasance was created in the respective shares of his two children, George and Letitia, upon their death-“without children,” related to their deaths at any time and not to their dying without children before the death of the testator, and for the purpose of this case we will adopt that construction as the true one, which brings ns to a consideration of the merits, of the three affirmative defenses relied on.
It is vigorously insisted that the first one is unavailable, (a) because plaintiff executed the deeds under duress but it is nowhere alleged that defendant when he purchased the land in 1913 had knowledge of such duress except that affecting his own deed. It is nowhere alleged 'by plaintiff that he possessed any such knowledge with reference to the deeds executed to her brother in 1891 and in 1912; so that, the duress, if any, under which plaintiff executed those deeds could not operate to defeat defendant’s rights against plaintiff growing out of their execution by her. It is next insisted in avoidance of the same defense (b) that the various deeds of plaintiff were without consideration, but to this we can not agree, since the relinquishment by her brother George of all his future interest, either vested or contingent, in her
Defense (2), relying on limitations, is sought to be avoided by invoking the provisions of section 2544 of the statutes saying: “In all cases where the'doing of ' an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, absence, or refusal to act, shall not be estimated in the • application of any statute of limitations.” Although learned counsel laboriously strives to convince ns of the
Defense (3) must also be sustained. It is urged against its availability that this court in its opinion in the case referred to did not discuss or mention the point now under consideration, but directed a reversal of the judgment upon another ground involved in that case. While that may be true it by no means results that the point was not adjudicated. It was presented by the pleadings and it was for the very purpose of obtaining the same relief that plaintiff here joined her brother’s committee as a plaintiff in that case, and that was> the only personal relief which she sought therein. Notwithstanding the point was not expressly mentioned in that opinion it directed the petition to be dismissed, not merely only as to George Clay, but also as to all the plaintiffs which included Letitia Clay, and that order necessarily adjudged that her claim in that case was without merit.
It is not essential to the creation of an adjudicata estoppel that the matter which the litigant is thereafter prevented from relitigating should be expressly discussed or settled in the determination of the first case
Notwithstanding the uniform condition of the law upon the subject it is said in avoidance thereof in brief
Wherefore, the judgment is affirmed.