108 Ky. 792 | Ky. Ct. App. | 1899
Opinion op the court by
Reversing.
It is the contention of appellee that, claiming under paper title from one Langdon and others, Thomas Dupoys-ter and his son Joe C., settled in 1848! upon the tract of land in controversy, containing some 3,600 acres, in Ballard and Carlisle counties; that they occupied a small poriion of the land that was cleared, made some little improvements, cut timber, and cleared a few more acres of land, and asserted their ownership to the entire tract. Appellee further contends that on March 16, 1859,, Thomas Dupoyster, who had three children living at that time (Joe G., Ben S., and Thomas Dupoyster), by deed duly signed, acknowledged, and recorded in the proper office, conveyed this land to his son Ben S. for- life, and then to the children of Joe C. Dupoyster, under conditions to be considered presently. In September, -1890, Joe C. Dupoys-ter, his wife, and his brother Ben. S. Dupoyster, claiming
The company had paid something over $8,000 on the trade, when Joe O. Dupoyster, in his own right and as the administrator of his brother Ben S., who had died in March, 1891, filed in the Ballard Circuit Court, December, 1891, the present action to recover of the appellant company the balance of the purchase money. To this action, Harkless, Trimble, and others, claiming liens on the land, were made parties; but there is no appeal from any judgment on their behalf, and it is not necessary to discuss their interests. To this action the Ft. Jefferson Improvement Company set up several defenses, but we will discuss the only material one, in which they charged fraud upon the part of their vendors in making the sale. It is charged that liens of Harkless and others were on the lands when sold, and that since the purchase the company has discovered that Joe C. had theretofore sold a large portion of the land to one McCombs, all of which Joe C. Dupoyster had fraudulently concealed from the company, representing that the latter was getting a clear title. The company therefore asked for rescission of the contract of sale, and for a lien on the land to secure to it the money already paid.
An amended answer of the company charged that in November, 1883, Ben S. Dupoyster had conveyed the entire tract to Joe B., son of Joe C. Dupoyster, and assigned this as additional ground for rescission. It appears that this deed of 1883 conveys about 1,000 acres of the 3,600 acres in controversy, and that, though it was of record, it was not indexed. In 1893 Joe B. Dupoyster, in
The first and most important question that presents itself to us for decision is as to the genuineness of the deed of March 16, 1859. The old gentleman, Thomas Dupoys^
It is insisted by counsel for appellant that, even if this deed of 1859 is genuine, it must be declared void tinder the champerty statute. This question is thoroughly and ably discussed by counsel, and we have given it much consideration. It may well be conceded, as contended by counsel, that there was a superior title that of the Lang-dons and others, and that at the time Thomas Dupoyster settled upon a portion of the land in. controversy there were several parties in actual possession of the greater portion of this land, claiming it under the superior title. We think the evidence clearly establishes the fact that these parties were holding a great portion of this land under the superior title adversely to Thomas Dupoyster at the time he made the deed of March 16, 1859, to his son Ben. Taking this view of the case, counsel contends that the deed is therefore absolutely void, as being within the champerty statute, and respectable authority is cited sustaining counsel’s position; but, construing the statute as a whole, and in view of the decision of this court
Having held this deed of 1859 to be genuine, and not void as within the champerty statutes, we now find it necessary to construe this writing, in order to determine who are the owners of the land in controversy. The deed reads as follows: “This indenture, made and entered into by and between Thos. Dupoyster, party of the first part, and Ben S. Dupoyster, party of the second part, all of Ballard county, Kentucky, this, the 16th day of March, 1859, to-wit, said party of the first part, for £he following consideration to-'wit that said second party has certain lands in Mississippi county, Mo., which the second party is to convey to the first party, or such parties as the first party may direct to be conveyed to, and also one dollar in hand paid by second party to first party, the
It is expressly agreed and understood that said second party is to deed or will said lands to the bodily heirs of J. C. Dupoyster, — in other words, the title and possession of said lands is only invested in said second party during his natural lifetime, then to said heirs of J. 0. Dupoyster; and second party has the discretion,of allotting said lands between said heirs as he may see proper; said second party to have and to hold 'said lands during his natural lifetime, and said heirs, and their heirs and assigns,together with all the appurtenances thereunto belonging, 'forever, with covenant of general warranty.” The lower court construed this deed to mean that Ben S. Du-poyster took a life estate, with a contingent remainder to the bodily heirs of J. C. Dupoyster, with power of appointment in the life tenant. We think it quite plain that the grantor intended that Ben Dupoyster should take only a life estate in the land conveyed. We are also of the opinion that the word “heirs” and “bodily heirs,” as used
No power of appointment proper is created by this deed in the life tenant. At any rate, the power was an extremely limited one, and was directed to be exercised for the benefit of the bodily heirs of Joe C.; and, to make the meaning plainer, the grantor adds: “In other words, the title and possession of said lands is only vested in said second party during his natural lifetime, then to the heirs of J. C. Dupoyster.” Then follows a provision merely giving to Ben the “discretion” of allotting, of dividing out or partitioning, “as he maj1, see proper,” these lands among the children of J'oe C. The language does not suggest an unequal allotment or partition, nor create the power of cutting off or lessening the right or interest of any one of these heirs or children. We must suppose the allotment or division was intended to be an equal one, but that the discretion was vested in Ben to designate the location of each child’s interest or share. And this designation or allotment he might make by will or deed. It follows that the children of J. C., as they were born, took vested remainders. It appears from the record that during the married life of J. C. Dupoyster there has been born to him four children, two of whom are dead. Hence, under our construction of this deed, the interest of the dead children passed by the law of descent to their lawful heir or heirs. If it should appear that the child of Joe
At the time of the conveyance of the land in controversy by J. 0. Dupoyster and Ben S. Dupoyster to the appellant companj'-, it is quite certain that the Dupoysters knew of the existence of this deed of 1859, and knew that they could not convey to the company the fee-simple title, — all of which, from the evidence, was unknown to the company. This fact, in connection with other evidence here tending to show fraud and misrepresentation upon the part of the Dupoysters, justified the lower court in ordering a rescission of the contract. On whatever of the land J. C. may be the owner by inheritance ■ from his dead children there will be a lien in favor of appellant for the purchase money wrongfully received by him.
A brief has been filed on behalf- of the Langdon heirs, but there are no pleadings filed or issues made in this action from which we can intelligently discuss their interests, if any. The judgment is reversed, and cause remanded for proceedings consistent herewith.
Petition for re-hearing filed by appellant and overruled.