134 Ky. 224 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
Appellant, as a creditor of Betsy Ann Mathis, following her death brought this action against her administrator and children for a settlement of her estate, and to recover $475, the amount of two notes which the decedent executed to him a year or more before, her death. The notes were for a batanee and the larger part of the purchase price of a tract of land in McCracken county, sold and conveyed the decedent- by appellant in 1906, their payment being .•secured by a vendor’s lien on the land expressly retained in the deed. In 1907 appellant, as further security for the payment of the two notes referred to, 'caused the decedent to execute to him a mortgage upon a 65-acre tract of land lying in Marshall county. ‘The mortgage was duly acknowledged and recorded. In the action brought by appellant against the administrator and heirs at law of the decedent he sought to enforce the vendor’s lien on the McCracken county land, and also the mortgage lien on the Marshall county land, and prayed for the sale of both to pay Ms two notes. The appellees (administrator and heirs at law of the decedent) resisted the enforcement of the mortgage lien by a sale of the Marshall county land, and by answer denied the existence of such lien, and alleged that the decedent at the time of the execution of the mortgage and down to the time of her death, only 'had and owned a, life estate in the Mar
~VVe must therefore look to the deed by which the Marshall county land was conveyed the decedent to determine the character of her title thereto. The deed was executed to her by W. H. Feesor and wife, Parlee Feesor, the latter being the decedent’s sister. The body of the deed reads as follows: ‘ ‘ Know all men by these presents that we, W. H. Feesor and Parlee, his wife, of Marshall county, Kentucky, for and in consideration of $50.00, in hand paid, does hereby grant, bargain and sell and convey unto Betsy Ann Mathis, her maiden name being Warford, to her land her bodily heirs the following land, viz: Sixty-five acres of the west end of 'the northwest, or of (section 31 township 6, range 3 east, in Marshall bounty, Kentucky, the said Betsey Ann Mathis to have and to hold the same her lifetime, then to her bodily heirs, the said: Feesor and wife covenanting that they,will warrant and de' fend the property hereby conveyed. In witness whereof we have hereunto ’set our hands land -seals this January 8, 1870.” It is contended by appellant that the above deed created an estate tail, such as section 2343, Ky. St, converts into an estate in fee. That section declares that “All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to oe estates in fee simple. * * #” The words “bodily
■ It is further insisted for appellant that the deed in question should be treated as a deed -of partition, and its attempt to create a life estate in Mrs. Mathis, if it can be so construed,- should be ignored because,
Having no cause ¡to disagree with- the 'conclusion reached by the circuit court, the judgment is affirmed.