173 Ky. 223 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming on original appeal and reversing on cross-appeal.
“This deed of conveyance made and entered into this the 11th day of July, 1884, between Thos. P. May and Elizabeth M. May, of the county of Pike, and state of Kentucky, parties of the first, and Thos. J. Ford and Nancy Miriam Ford, his wife, parties of the second part.
“Witnesseth: That said party of the first party for and in consideration of the sum of twelve hundred dollars as an advancement to the said May Miriam Ford, late May, and our daughter, and for the further consideration of the love and affection we have for our said daughter, do hereby sell and convey to the parties of the second part, their heirs and assigns forever, the following described property, to-wit:
“One tract of land on John’s Creek in Pike county and state of Kentucky, and on the east side of said creek and bounded as follows, to-wit: (Here follows description.)
‘ ‘ To have and to hold the same, together with all the appurtenances thereunto belonging unto the party of the second part, their heirs and assigns, forever, and the said party of the first part hereby covenants with the said parties of the second part that they will warrant the title of the property hereby conveyed unto the said party of the second part,, and their heirs and assigns, forever.
“The restrictions placed on this conveyance by the grantors is that the same shall in no wise be liable for the debts or liabilities of the said Thos. J. Ford and shall not be sold by him in any wise without the consent of his wife to whom this is intended to convey a separate estate.”
Prior to the year 1890, Nancy Miriam Ford died, leaving surviving her several children. Thereafter, Thomas J. Ford was appointed and qualified as their guardian.
On September 11th, 1896, Thomas J. Ford brought -suit against his children for the purpose of confirming a contract, by which he had exchanged the land embraced in the above deed for another tract of land belonging to W. R. May and located on John’s Creek in Pike county. On final hearing the chancellor adjudged
On March 23rd, 1912, Samuel M. Ford and others, children of Fancy Miriam Ford, brought suit to recover the land conveyed to May, on the ground that the judgment confirming the exchange was void, and to recover the difference in the rental value of the two tracts of land. A demurrer was sustained to the petition and the petition dismissed.
On appeal to this court, it was held that there is no statute in this state giving to courts of equity authority to approve an exchange of land made by the guardian of infants, or to divest infants of their title for the purpose of perfecting such an exchange, and that a judgment approving such an exchange is void. It was also held that as the infants had no estate, except an estate in remainder, they were not entitled to recover the difference in the rental value of the two tracts of land. The court declined to pass on the estate which Thomas J. Ford took under the deed which Thomas P. May made to him and his wife on July 11th, 1884. The judgment was reversed, with directions to overrule the demurrer to the petition as amended. 157 Ky. 830, 164 S. W. 88. On the return of the case, Thomas J. Ford filed a petition, asking to be made a party, and that he be adjudged such relief as he appeared entitled to. May filed an answer, pleading in substance that Thomas J. Ford, under the deed from Thomas P. May and wife, took either an estate for life in the land thereby conveyed, or a fee simple to one-half thereof and an estate for life in the other half. He further pleaded that whatever estate Thomas J. Ford had in the land conveyed to bim by the commissioner was vested in him by the commissioner’s deed. Thomas J. Ford pleaded that he never claimed any estate in the land conveyed to May, except an estate by the curtesy, and that his title thereto did
Judgment affirmed on original appeal and reversed on cross-appeal, and cause remanded for proceedings consistent with this opinion.