81 Ky. 470 | Ky. Ct. App. | 1883
delivered the opinion or the court.
Wm. M. Smith, at the time of his death, owned the land described in this controversy. His only children and heirs were James M. Smith, John W. Smith, and the appellant, Mrs. Susan J. Elliott.
On the 2d day of March, 1854, John W. Smith conveyed his interest in the land to his brother, James M. Smith, the deed reciting at its close these words: “I have, together with Jane Smith, my wife, hereto set my hand and seal;” but it was signed alone by him. It was recorded the day of its date, March 10th, 1856. James M. Smith, with the consent of appellant and her husband, sold the land to Burrell Vaughn.for $1,000, payable in four years from date, with interest from that time, for which he executed his promissory note, and to whom James M. Smith executed a bond for title upon payment of the purchase price, and put him in immediate possession, which.he held until his death. He left two children, Robert and Jane, who were his only heirs. Jane married Harris. They and their guardian together have been in possession ever since their father’s death.
James. M. Smith -assigned the note to his mother, Mary M. Smith, and died without children, leaving the mother, the appellant, and the children of his deceased brother, J:
On the 5th of October, 1872, Mrs. Mary M. Smith brought suit against Vaughn’s administrator and heirs to recover the remainder of the note, the credits not paying the interest and principal, and to sell the land for its payment.
She tendered the defendants her own deed, the deed of appellant and her husband, not, however, tendering any deed from John and James Speed, children of John W. Smith, deceased.
The defendants resisted a recovery because of defect of title, which they alleged was in the infant children of John W. Smith, deceased, and sought a rescission on equitable principles.
John and James Speed Smith refused to join in a conveyance.
Mrs. Mary M. Smith died pending her suit on the note, having willed it and her other property to John M. Elliott and the appellant, or the survivor. The appellant survived him, and he also made her his sole devisee. Thus she became the owner and entitled to recover the proceeds of the note, unless John W. Smith’s children have some interest in the land, or the widow of J ohn W. Smith be living and entitled to dower in the land, and refuses, or can not be compelled to convey. There is no pretense in the record that the widow is living or claims any dower in the land. The infants, J ohn and J ames Speed Smith, having arrived at maturity a few years ago, attempted to convey, but by oversight-or design James Speed signed his name James M. Smith.
To avoid future litigation, we suggest, if a new trial be granted and a rescission be denied, the measure of recovery is the note and interest until it became due, and no longer, as the appellant and her predecessors were in default in not making a good title from the time the note became due, and should not, therefore, receive interest during their neglect, failure, or inability to convey. Should a rescission be adjudged, the rent should be estimated at a sum equivalent to the interest of the purchase price.
Wherefore, the judgment is reversed and cause remanded, with directions to overrule the demurrer and for further proceedings consistent with this opinion.