62 S.W.2d 792 | Ky. Ct. App. | 1933
Affirming.
This action was instituted under the Declaratory Judgment Act (section 639a-1 et seq., Civil Code of Practice) to determine the right of John F. Hord and others to exercise a written option which we shall hereafter consider.
On October 22, 1919, J.W. Hord and Edith Hord. executed and delivered to Ed Coley a deed, conveying to him, with covenant of general warranty, a certain tract of land in Carter county, Ky., for the consideration of $500 cash and $500 to be paid twelve months after date, with a lien on the land to secure its payment. The land conveyed was described by metes and bounds in the deed. Pending the negotiations of sale, *251
it was agreed that J.W. Hord and his heirs should retain and have an option to purchase the land of Coley at any time either Coley or his heirs desired to sell it, and Hord and his heirs desired to purchase it, at the same price Coley was paying Hord, allowing Coley the value of any improvements made on it which might increase its value. By mutual mistake of the parties, this clause was omitted from the deed. To make the deed conform to the real agreement between them, on the same day it was executed, delivered, and accepted by the parties, Coley executed, acknowledged, and delivered to Hord, a writing, reciting that by oversight this provision was omitted from the deed, and that he was executing it to correct the mutual mistake. He signed, acknowledged, and delivered the writing evidencing the correction, showing the option of Hord, which was accepted by Hord and placed on record in the clerk's office in which the deed was recorded. On March 18, 1929, Coley died, leaving surviving him Anna Coley, his widow, George, Dan, Helen, Charlotte, Anna Belle, Madge, Edith, Robert, and Junius Coley, his children and heirs at law. J.W. Hord departed this life, after the death of Ed Coley, and left surviving him Edith Hord, his widow, and John F. Hord, his son, his only heir at law. The facts were stipulated by the parties. Ed Coley was a colored man and had worked for J.W. Hord on his farm practically all of Coley's life. Hord owned 500 acres of land on which he resided, and, in order to provide Coley with a permanent home during his life where he could work for Hord, a deed containing the option was agreed to be executed and delivered by Hord and accepted by Coley. Coley continued to work on the farm of Hord, occupying the land conveyed to him as his home until his death. The ten acres conveyed to Coley was a part of the farm occupied by Hord and his family as their home. After the death of Ed Coley, his son, George Coley, borrowed $150 of W.H. Strother and executed a deed to him, which, is here agreed, was intended as a mortgage to secure the $150. This mortgage is not involved in the controversy and will not be further considered. J.W. Hord died testate, and by his will he devised his property of every description to his widow and son. They instituted this action against the widow and heirs of Ed Coley, asserting the election and right to enforce the option retained by J.W. Hord at the time he deeded *252
the land to Coley. The writings, evidencing the option, and the deed cover the same subject-matter and are between the same parties, and must be construed as one instrument. Luten Bridge Company v. Grant County,
The judgment of the circuit court is in harmony with these views. It is therefore affirmed.
