118 Ky. 204 | Ky. Ct. App. | 1904
Opinion of The court by
.Affirming.
About the year 1878, Boyle Doty, a well-to-do bachelor, something like thirty-five years of age, living on his farm, in Madison county, became intimate with Annie -James, a girl about sixteen years of age, living with, her grandmother in the .slashes, two or three miles from Doty’s residence, her father and mother being dead. In the year Í8S2, her grandmother having died, she went to his house and lived with him as his mistress. In 1889 a .son was born to them — the appellee, David Irvine Doty. They continued after the birth of the child living together as before until the year 1898, when there was some talk about the grand jury indicting them, and she took the boy and went to Missouri, staying there for some
It remains to determine whether the witness was incompetent to testify because she was, as guardian, a party to the action as relator. In Miller v. Cabell, 81 Ky., 178, 4 R., 962, it was held that the guardian of an inf ant is. an indispensable party to an appeal from a judgment obtained in a proceeding instituted in the name of the infant by him as guardian, and in that case the court said that, “where the guardian of an
The plaintiff in the case before us is David Irvine Doty. The recovery is his. The guardian may be removed by the county court at any time. Her only power is to protect the rights of the infant while she is guardian., If she were to resign as guardian on learning that her testimony was necessary to protect his interest, and another were appointed in her stead, she could; after she was removed, and when another had been substituted in her place as guardian, testify for the infant in the action. Stowex’s v. Hollis, 83 Ky., 544, 7 R., 549. The infant is under fourteen years old. He has no voice in the selection of his guardian, and no control over the appointment. The action of the county court in appointing a guardian for him, or the failure of the, guardian to preserve his interests by resigning, should not be allowed to destroy .the infant’s rights. Infants are the wards of the chancellor, and no construction of the statute should be adopted! which would be prejudicial- to their rights, unless required by its language. If the mouth of the infant’s most important witness can be closed by that person’s being apppinted his guardian, then the rights of infants may be often sacrificed by the statute that was designed for their protection. The language of the statute is, “No person shall testify for himself,” etc. 'The witness here is testifying for the infant, and not for herself, in the ordinary sense in which these words are commonly used. The •meritorious cause of action is in the infant., and in him alone. He can not testify for himself as to the transaction with the decedent, and as his mouth is closed by the law when the decedent’s mouth is closed by death, he and the decedent are
The case of Mason v. McCormick, 75 N. C., 263, relied on for appellants, was decided under a statute materially different from ours. There the statute provided that no party should testify, and, in addition, that was the case of a next friend suing for an infant, and, as such, personally liable for the costs of the action. The only possible interest the witness here has is in her commissions as‘guardian, and objection on a similar ground could' be made to every witness who has a debt or claim of any sort against the. ward’s estate: This is too uncertain an interest to disqualify a witness.
It is insisted also for appellants that the' evidence as a whole fails to sustain the clalmj of appellee, but we must give some weight to the finding of-the chancellor. The evidence is conflicting. If we look at the evidence produced by the appellants alone, the case seems entirely without merit, and, if we take alone that for the appellee, it seems to be clearly made out. The testimony of Annie James establishes the contract as set out in ihe petition. Her deposition shows her to be a woman of good common sense, and there is a sincerity about her testimony that is impressive, especially in her explanation of things relied on to contradict her. .She is sustained by a large number of witnesses who show beyond question that
It is further insisted, however, for appellants, that the contract, if made,' contemplated the continuance of the illicit relation which theretofore existed between the intestate and Annie James, the mother of the child. The rule is that a contract made in consideration of future illicit intercourse is void, and that it is also void if made in contemplation of a state of concubinage, or if the illicit relationship was understood by the parties to form a part of the contract. Lytle v. Newell, 24 Ky. Law Rep., 188, 68 S. W., 118; McDonald v. Fleming, 51 Ky., 285. There are facts in the record tending to sustain this view of the contract, but it is also capable of the other construction. If this were a suit by the mother for her services we have no question the principle should be applied, but it is not a suit for her services. It is a suit by the child. The evidence leaves nó doubt that, when the mother left Missouri, she left with the purpose of returning to Doty’s house and resuming her old place there. He met her at Richmond, and . took her and the child home in his buggy. She needed no inducement to return home. She had come from Missouri for that purpose. Her letters introduced by appellant show this beyond question. The object of the contract was not to get her to return or to resume her old place at his house. This was all settled. The purpose which theintestate had in view was keeping the boy. 'The law gave the mother the right to control the child. He wanted this right, and, to induce her
On the cross-appeal it is insisted for the infant that the chancellor should have adjudged him the land, and that the recovery is too small. Title to land can not be acquired by a parol contract, and part performance will not take the case out of the statute, under the rule in force in this State. Grant v. Craigmiles, 1 Bibb, 205; Hayden v. Mcllvain,.4 Bibb, 58; Holtzclaw v. Bla'ckerby, 9 Bush, 40. The contract is not otherwise within the statute of frauds, and while appellee can not be adjudged the land, the value of the thing promised may be estimated, and compensation for the breach of the contract may be adjudged, the intestate having received the consideration upon which his promise rested. Benge v. Hiatt’s
It is said there is a mistake in copying the record, and that this is shown by the transcript. The depositions were taken-in shorthand, and it is said the stenographer made a mistake in copying from his. notes, and that this mistake is shown by-other parts of the record.
We do not see that there is enough in the record to warrant us in concluding that a larger judgment should have been entered in favor of appellee, and on the whole case, the judgment appealed from is affirmed on the original and on the cross appeal.
Whole court sitting.
Petition by appellant for rehearing overruled.