200 Ky. 31 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing in part and affirming in part on the appeal of James P. Comhs, and affirming on the appeal of Emaline Grigsby, et al.
This action was filed in the Perry circuit court 'by some of the heirs of Clinton Combs against other heirs of his for a division among plaintiffs and defendants of several described tracts of land alleged to have belonged
On the appeal of James P. Combs two tracts of land are involved, one of which is designated in the record as the Mason 'Combs 400-acre survey, and the other referred to as the Elijah Cornett land. The 400-acre survey was patented by Mason Combs, the father of Clinton Combs, in 1810. After the death of his father Clinton Combs became the owner of that part of the survey lying on the east side of the north fork of the Kentucky river, and in 1891 conveyed it to his son, S. B. Combs, who in 1908 conveyed it to J. E. Combs. Clinton Combs died in 1900. He was then about 98 years of age, and the evidence shows that he had been very dissipated from his early manhood. It is contended by plaintiffs that when he deeded this land to S. B. Combs in September, 1891, he was of unsound mind, or at least was suffering from such mental infirmity as rendered him incapable 'of understanding the consequences of his act. Both of these contentions are denied by defendants. The chancellor held that Clinton Combs ’ mental condition was such as to render the deed voidable, but that it was in force until it was disaffirmed. He also held that it was disaffirmed by a subsequent conveyance of a part of the land to other children of Clinton Combs and by bis retention of control of the property until the time of his death. As an addi
Starting with the proposition that the deed to S. B. Combs was not void but merely voidable, it is important, as we view the law, to consider the application of the statutes of limitation relied on by James P. Combs. This action has a twofold purpose, one of which is to divide the lands of Clinton Combs, including as alleged this tract, among his heirs, and the other to set aside the deed to this tract because of fraud in its procurement. As it pertains to the latter purpose this is not an action for the recovery of real property, to which the limitation of section 2505 of Kentucky Statutes applies, but it is an action to set aside a deed because of fraud.
Section 2515 of Kentucky Statutes provides that “an action for relief on the ground of fraud or mistake” shall be commenced within five years next after the cause of-action shall have accrued, .and section 2519 provides that “in actions for relief for fraud or mistake” the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake, but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud. As we have said, the deed of September, 1891, was not void, but at most only voidable. The title to the land passed under the deed from Clinton Combs to S. B. Combs. Hence it seems clear to us that the ten years statute of limitation is applicable; and, as nearly twenty-five years elapsed after the deed was made before this action was instituted, the claims of the plaintiffs are barred unless there is some reason why the statute did not run, or unless some one of the other grounds on which the judgment is based is sustainable.
The findings of fact on which the chancellor’s decision rests are that the deed was procured by fraud and the overreaching of Clinton Combs, that it was subsequently disaffirmed by a later conveyance and the grantor’s re
This brings us to a consideration of the finding of a disaffirmance on-the ground of Clinton Combs’ retention of the control of the property, which is related to the question of such acquiescence in the disaffirmance by S. B. Combs as estops him from asserting any claim under his deed, and the further question of the acquisition of title by Clinton Combs by adverse holding after the execution of the dee-d of 1891. The evidence on these points is conflicting, but it is our view that it preponderates in favor of the contention that Clinton Combs did not retain possession and control of the land, but that S. B. Combs took possession of it, cultivated and used it as he pleased, and supported Clinton Combs and his wife so long as they lived. Having reached that conclusion, it must be held that there was not a disaffirmance of the conveyance nor a divesting of S. B. 'Combs’ title by any adverse holding, and in consequence no acquiescence on the part of S. B. Combs in any act or conduct that estops him from maintaining his rights under his deed.
But it is said that the deed may be attacked on the ground of fraud in its procurement notwithstanding the
It follows that the statute operates as a bar to the action to set aside the deed, and accordingly it was error to adjudge that the land in question constituted a p'art of the estate of Clinton Combs.
As to the second tract involved on the original appeal, it appears that on July 8, 1892, it was conveyed by Clinton Combs to his son, J. J. Combs. Prior to that time it had been sold under execution against Clinton Combs in favor of E. C. Cornett, but Cornett had agreed that the land might be redeemed. After J. J. ’Combs acquired the deed from his father he went to Cornett to redeem the land, but before he could pay the money J. P. and D. Y. Combs paid Cornett and took a transfer of his bid. They afterwards procured a deed from J. J. Combs, and they had the sheriff make Cornett a deed to the land and Cornett to make them a deed. Subsequently J. J. Combs instituted a suit in the Perry circuit court to set aside the deed made by him, and a judgment was entered granting him that relief. The case was appealed to this court and affirmed in Combs, etc. v. Combs', 23 Ky. Law Rep. 1264, the court holding that E. C. Cornett only claimed a lien on the land as against Clinton Combs, and that J. P. and D. Y. Combs stood in the shoes of Cornett. They were given a lien on the land for the amount that they had paid Cornett. The evidence shows that they accepted payments on that lien as late as 1909 or 1910, and that it was finally extinguished.
It is said, however, that the purpose of the suit by John J. Combs was to set aside the deed which he had made to J. P. and D. Y. Combs, and that suit in no wise involved the title to that portion of the tract conveyed by Cornett to J. P. and D. Y. Combs not embraced in the deed of Clinton Combs to John J. Combs. Accordingly it is contended that the court should have adjudged
The appeal of the plaintiffs involves several tracts of land claimed by and adjudged to Sampson Combs and the children of William Combs. These lands are referred to in the record as the Everidg’e lands. The evidence tends to show that during the Civil War Clinton Combs bought these lands, which adjoined his home place, under a parol contract from A. C. Godsey. It does not appear from any satisfactory evidence in the record that he was ever given a deed or title bond to the lands. However, he paid to Godsey several hundred dollars at different times on the purchase price. In 1869 Godsey conveyed a large part of this property to his son, D. S. Godsey, all of which D. S. Godsey conveyed in 1883 to Sampson and William Combs. In 1894 Sampson and William Combs divided the property between themselves by deeds which they executed and delivered. Sampson Combs has since that time lived on his part of the land, and William Combs resided on his part until his death, since which his children have lived on it. Sampson and William Combs and their, children have been in the notorious, peaceable, continuous and adverse possession of the Everidge lands since 1883, and also in possession of that part of the two Baker tracts of 200 and 60 acres, respectively, that was adjudged to them by the chancellor.
It is insisted for plaintiffs -that inasmuch as the Eve-ridge lands when owned by A. C. Godsey embraced eight separate tracts or patents and the deed'from D. S. Godsey to Sampson and William Combs shows a conveyance of only four tracts, the chancellor was in error in adjudging Sampson Combs and the children of William Combs all of the Everidge lands. There are two. complete answers to the insistence. The first is that the pre
Prom the foregoing it will be seen that the judgment as to James P. Combs is reversed in part and affirmed in part, and as to Emaline G-rigsby and others as against Sampson Combs and the heirs at law of William Combs it is affirmed.