130 Ky. 827 | Ky. Ct. App. | 1908
Affirming.
Josiah H. Combs died intestate in September, 1894, leaving an estate comprising several thousand acres of land in Perry county and a number of town lots in Hazard. He was survived by his widow and four children, and the descendants of a fifth, who had died in the lifetime of the intestate. Within a few days after the death of J. H. Combs, hie son, appellant W. J. Combs, and appellee, D. Y. Combs, entered into an agreement, in which the former sold his undivided fifth interest in his father’s real estate to the latter for the recited consideration of $5,000, of which $400 was paid, and the balance was to be paid when the land was divided among the heirs. A deed was then executed between these parties, reciting that the consideration was $5.,000 paid. A written memorandum evidencing the real transaction as stated above, signed by both the parties, was executed simultaneously with the* deed and delivered to appellant. It was then believed that Josiah H. Combs’ estate was not in debt. W. J. Combs was the judgment debtor of Russell & Co. for-a sum. in excess of. $1,000. D. Y. Combs (appellee) was- then-the sheriff of Perry county, and had in his hands the execution on this judgment when J. H. Combs died, and. when- he bought appellant's interest. The execution was returned, in- substance, no property. Subsequently, Russell & Co. brought an action on their judgment, and return, seeking a discovery of assets. D. Y. Combs was made a garnishee defendant. He answered' that he owed- the defendant here $2,600, being the balance of $3,000 purchase money on ihd land conveyed to him-, after deducting the
The actual consideration of a written obligation may be shown, though it contradict the writing. Section .72, Ky. Stats., 1903. But this does no mean that the writing is to be ignored upon that point, and the matter tried out alone by the parol testimony of the witnesses. On the contrary, the rule is that the writing is prima facie correct, in stating the consider
It is not pretended in this suit, and does not seem to have been advanced at any time or by anybody, that the transaction was in reality a mortgage to secure a $400 debt. Nor was there any debt of $400, though it is true that W. J. owed D. Y. about $375,
The deed between the parties containing the warranty, a breach of which is claimed as the basis for resisting in part the payment of the purohaseTmoney obligation, contains this description of the property intended to be-conveyed: “All and singular his entire undivided one-fifth interest in all the' real estate owned by J. H. Combs, deceased, at the timé óf his death, embracing lands and town lots in Perry county, Kentucky, adjoining the lands of Jeremiah’ Combs, etc. A particular description of said property can not
As to the widow’s dower, appellee will be entitled to the possession of one-fifth of it on her death. There is no breach of warranty because he fails to get it now. Appellants inheritable interest in the real estate of his father was subject to the widow’s dower; he took, not as against her, but he and she Were joint tenants in the whole tract until partition and assignment of dower, much as he and the other heirs were. His one-fifth is subject to her life estate in so much as might be allotted to her for dower, precisely as it was subject to the rights of his coparceners to have their shares allotted in severalty out of the whole, with due regard to value, etc. The widow’s dower is not an incumbrance against her late husband’s lands; it is •her own interest, had potentially before he died, her particular property after his death, which took nothing from what he had ever owned, and nothing from what descended to his children and other heirs at law. We think the circuit court was-not in error in holding that, as to the dower, there was not a breach of appellant’s warranty.
As to the land lost to strangers by virtue of the superior titles of the latter, we do not think appellant’s warranty is broken. He sold only such lands as J. H. Combs had title to. As the records must have been looked to, then, to see what lands the title to was vested in J. H. Combs, they would have disclosed that, as to the particular tracts subsequently lost to
The sum paid by appellee, or which was realized by the sale of so much of the land as was necessary to pay the Russell & Co. judgment, was also properly credited to him on the obligation in suit; but his plea of estoppel was not sustained. In the Russell & Co. suit appellee and appellant were not antagonists in interest. The former was only called upon to disclose so much of his 'indebtedness to the latter as would enable the creditor to coerce the collection of his judgment debt. It was immaterial whether appellee owed appellant $2,600 qr $4,600, for if he owed as much as the plaintiff’s debt, which was much less than $2,600, that was all that was necessary or pertinent to be shown. Appellant could not have controverted by pleading in thaUcase, the answer of his co-defendant, no issue could have been formed by them on the matter, and the court would not have stepped aside to* settle an entirely irrelevant dispute between the defendants as to a sum which was not involved in the cause of action sued upon. Nor did the judgment in the Russell & Co. suit purport to adjudge and settle the matter as between appellant and appellee. It is not a thing adjudicated. The issue now here was not tried and could not have been tried in the old case. One defendant is not bound by a false statement in the pleading of his co-defendant, which he neither admits on his own behalf nor has opportunity to traverse.
/We conclude that the judgment should be affirmed on the cross-appeal, and reversed on the original ap