172 Ky. 585 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
George F. Dalton and Lizzie T. Dalton were married in 1893. They resided upon a small tract of land, containing about six acres, near Keysburg, in Logan county, upon which there was a residence. This home place belonged to the husband. He also owned a tract of sixteen acres lying nearby.
On March 7th,' 1903, George F. Dalton executed a note to his wife for $600.00, and secured its payment by simultaneously executing to her a mortgage upon the six:-acre tract.
In March, 1907, George F. Dalton was adjudged to be of unsound mind, and was sent to the Western State Hospital, at Hopkinsville,, for treatment, where he remained until late in 1913. On October 30th, 1913, Lizzie T. Dalton brought this action upon the note, and to enforce her mortgage lien. About the time the suit was filed, Dalton was dismissed from the State Hospital; and, Harry Borders having been appointed his committee, he filed an answer contesting Mrs. Dalton’s right to a judgment, alleging (1) that George Dalton was mentally incompetent to know the effect of his act when he signed the note of March 7th, 1903; (2) that there was no consideration for said note except the sum of $100.00, which Mrs. Dalton had expended in the improvement of the house.; (3) that the note had been procured by fraud and undue influence; and, (4) he asserted a counterclaim for $638.50 for rents collected by Mrs. Dalton between 1907 and 1913, the period of her husband’s confinement in the State Hospital.
The circuit court dismissed the counterclaim; gave judgment upon the note, and enforced the mortgage lien. From that judgment George Dalton’s committee prosecutes this appeal.
Giving due weight to the finding of the chancellor upon a question of fact, as we should do in cases of doubt, we are not inclined to disturb the judgment upon this ground. Byassee v. Evans, 143 Ky. 415; Kirkpatrick’s Exr. v. Rehkoph Saddlery Co., 144 Ky. 129; Salyer v. Hawkins, 147 Ky. 487; Norris v. Isaacs, 149 Ky. 709; Wathen v. Wathen, 149 Ky. 504; Bond v. Bond, 150 Ky. 392; Salmon v. Martin, 156 Ky. 309; McDowell v. Edward’s Admr., 156 Ky. 475.
It appears, however, without contradiction, that her father, W. D. Rust, died in 1900, leaving her $666;.00 as her portion of his estate, which was paid to her by E. L. Rust, executor of her father’s estate, prior to March 7th, 1903. As early as October 8th, 1894, E. L. Rust had loaned George Dalton $200.00, secured by a mortgage upon the six-acre tract, above referred to, and when E. L. Rust came to pay his sister, Mrs. Dalton, her share of her father’s estate, he assigned to her in part payment thereof, George F. Dalton’s lien note, above referred to, which, at that time, with interest, amounted to $283.75. The executor paid her the balance of her patrimony in money, and Mrs. Dalton. testified that she turned over practically her entire patrimony to her husband, for which he executed the note and mortgage in question. To the extent that Mrs. Dalton furnished the money to pay off the note given in 1894, she was entitled to be subrogated to the benefit of the mortgage given to secure its payment. Coleman v. Frazer, 3 Bush 309.
While no attempt was made to meet the. testimony of E. L. Rust and Mrs. Dalton, it is insisted that Mrs. Dalton’s testimony was incompetent under subsection 1 of section 606 of the Civil Code, .she being the wife of the defendant against whom she testified; and, that E. L. Rust’s testimony was incompetent because he remained in the room, as the representative of his sister, after a separation of witnesses had been asked, and while Mrs. A. D. Dalton, the mother of George Dalton, testified. Exceptions were filed to these depositions, upon the grounds above indicated, and it is insisted that the court
The exceptions to the depositions of E. D. Moseley likewise were never acted upon by the court, and come within the rule above announced.
There was no merit in the counterclaim, and the circuit court properly disregarded it.
Judgment affirmed.