69 Ky. 519 | Ky. Ct. App. | 1869
delivered the opinion op the court.
Weathers Smith, the father of'Mrs. Susanna Rogei’s, conveyed three hundred acres of land in Bath County by a deed of indenture, substantially as follows: “ This indenture, made this 29th day of November, 1818, between Weathers Smith of Bourbon County and Commonwealth of Kentucky of the one part, and Susanna Rogers of Bath County and Commonwealth aforesaid of the other part, witnesseth: That the said Weathers Smith, for and in consideration of the sum of six shillings, current money of Kentucky, to him in hand paid before the sealing and
At the date of the deed Mrs. Susanna Rogers was the widow of Charles Rogers, and had four children; viz., Eliza Rogers, who afterward married Thomas T. Shreve, George W. Rogers, John G. Rogers, and Susanna Rogers, who married P. R. Bean, and after his death married Mr. N. Asberry, whose wife she now is.
Mrs. Susanna Rogers in 1817 intermarried with David T. Foster, and by that marriage she had one son, W. W. Poster, and died in 1850, leaving her husband surviving her, who died in the summer of 1861. John G. Rogers died in 1830, over twenty-one years of age, intestate, unmarried, and childless, leaving his mother, two sisters, his brother of the full blood, and his half brother his heirs.
In June, 1862, this suit in equity was brought by Thomas T. Shreve and the two children of his wife Eliza, late Rogers, she having previously died — to-wit, Charles W. Shreve and Mary, who had intermarried with S. S. Goodloe, her husband joining in the suit — Asberry and wife, and the heirs of George "W". Rogers, he having died intestate, against said William W. Poster, for a partition of said three hundred acres of land conveyed by the deed of the 29th of November, 1813, aforesaid; of
As W .W. Foster, in an amended pleading, claims that under the deed of the 29th of November, 1813, aforesaid, his mother took a present joint interest with her four children, and that he was entitled to that interest by virtue of a conveyance from her and her husband, and that she also took as heir to her son John G. Rogers two ninths of his undivided share in said land on his death, which also passed to him by said conveyance, it first becomes necessary to determine what estate or interest Mrs. Foster took in said land under the deed of her father of 1813. And this question we regard as virtually settled by this court in "Webb & Harris v. Holmes, &c., 3 B. Mon. 404. This deed, like the one partially copied in the case referred to, is a deed inter partes, in which Weathers Smith is the party on one side and Susanna Rogers on the other. The persons designated in the deed as “ her present heirs ” are not made parties thereto, nor are those terms used in the caption, which by the designation of the parties is intended to confine the deed to those who are named in exclusion of all-others as contracting parties; and as strangers who are not parties to a deed can derive no legal interest under it, or maintain covenant on it, so it is well established that those who are not
The foregoing is an extract from the opinion, supra, at the end of which the authorities relied upon as sustaining the principle are cited.
So to give to the deed any operation as to those persons designated therein as “ the present heirs ” of Mrs. Rogers, by which terms we do not doubt the grantor intended to include the four children of his daughter Mrs. Rogers, they must be construed to take in remainder only, as they can not take a present joint interest with their mother; and such construction should be given to the deed as to give some beneficial interest to these children, for whom, as we think, the grantor intended to make some provision; and by giving this construction to the deed they are all provided for: the mother to take a life-estate, and the children an estate in remainder in fee after the termination of the life-estate. The court below so construed the. deed, and we approve it.
On the 1st of February, 1884, David T. Foster and wife, Susanna Bean, late Rogers, and P. R. Bean, her husband, and George W. Rogers and wife, in consideration that Foster and wife, and the children of Mrs. Foster by her first -husband Charles Rogers, had agreed upon the manner of dividing the estate of Charles Rogers, deceased, including the land and slaves of said decedent, and also the lands descended to Mrs. Foster from her father Weathers Smith, and from her mother, and sister Lydia Smith — the said persons named being the first party — conveyed to William W. Foster an undivided fifth part of the whole of the three hundred acres of land conveyed by Weathers Smith to Mrs. Foster and children by the deed of the 29th of November, 1813, aforesaid; and also conveyed to him a like interest in certain slaves
From the peculiar phraseology of the deed of Bean and wife and G. W. Rogers and wife to W. W. Foster, it is very clear that they do in fact convey to him sixty acres out of said three hundred acre tract, and according to the letter of the two deeds Foster would be entitled to ninety acres out of said tract, which seems from extrinsic facts not to have been the intention of the parties. But it is an unexplained fact in this record, that while Shreve and wife attempt to correct what they call a mistake in said deed as to the negroes, and say that they then convey all their right and title to one undivided fifth part in and to said negroes to W. W. Foster instead of the fifth of their undivided half, and that it is understood that their interest in the negroes is equal and the same as said W. W. Foster’s, nothing is said in said memorandum of any mistake in the deed as to the land, although the attention of the grantors was called directly to the deed.
"Whether from the unskillfulness in the preparation of the deeds, or from other causes which at this remote period from the transactions can not now be known, it is certainly true that the rights of these parties are left in confusion and uncertainty. But, looking at the design
Appellant, in his amended answer, filed in March, 1865, states that by a family arrangement, made in 1827 by his father and mother for him and themselves and the children of Charles Sogers and the said Shreve, his father and mother were to have a life-estate each in the three hundred acres; and all the land and slaves owned by Foster and wife, and all the land and slaves derived from Charles Sogers, deceased, including the remainder estate in said three hundred acres, “ should be equally divided between the children of said Susanna Foster of her first husband and himself , the said W. W. Foster; which arrangement he in that answer insists shall be carried out. And that seems to have been the object of the parties when the deeds of George W. Sogers, Bean and wife, and Shreve and wife, before referred to, were executed; which allegation is strongly confirmatory of the conclusion to which we have come i
It now remains to determine whether appellant acquired the interest of G. W. Sogers in his life-time in the three hundred acre tract. It is alleged by appellant, in his cross-petition against the heirs of said G. "W. Sogers, that he owned, prior and up to 1844, a .tract of land of one
The deed from appellant to apjoellees, the children of G. W. Rogers, bears the same date with the deed from Foster and wife to him, and recites the consideration to be two thousand four hundred dollars in a tract of one hundred and twenty acres that day conveyed to him by D. T. Foster and wife; so that there can be no doubt that the one conveyance was made in consideration of the other.
Moreover, the insolvency of G. "W. Rogers at the time, and his having taken .the benefit of the bankrupt act of Congress, is not denied in the answer to the cross-petition;
Dr. J. Barnes, one of the subscribing witnesses to the deeds aforesaid, both of which are copied in the record, testifies that he was present when they were executed: that Greorge ~W. Rogers was also present, understood the arrangement, approved it, and desired it to be consummated; that the sole consideration of the conveyance of the two fifths of the home tract by D. T. Foster and wife to appellant was the conveyance of the one hundred and twenty acre tract to Gr. "W. Rogers’s children. This family arrangement, made for the benefit of said Rogers and family by his approval more than eighteen years before this suit was brought, acquiesced in during his life, and after his death ratified by his children by a sale of the land and an appropriation of the price to their own exclusive use, should not be disturbed or defeated without complete restoration, which can not now be done in this ease.
The principle of equitable estoppels applies where, upon the occasion of a transaction, money is, with the privity and in the presence of any person, paid upon the faith of a representation which that person understands, and knows is about thus to be acted upon, and that his not disputing will be regarded £s confirmation of it, and he remains silent. He is bound to fulfill the purpose for which it was made. This was the case of one tenant in common contracting for the sale of the entire estate; other tenants, being present when a portion of the money was paid to the mortgagee and making no objection, were held
And in section 1546 (ibid.) the author, with approbation, quotes the following from an opinion of the lord chancellor: “It is a universal law that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might otherwise have abstained, he can not question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words, or to the fair inference tó be drawn from his conduct.” And again: “ If a party has an interest to prevent an act being done, and acquiesces in it so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had it been done by his previous license.” (See Brothers v. Porter, &c. 6 B. Mon. 106, 113-14.)
The history of the transaction leaves not a doubt but that the conveyance of Poster and wife of the 9th January, 1844, was intended by G. W. Rogers and the grantors to pass his interest in the land to appellant, and his heirs are now precluded from setting up claim thereto, but that appellant is entitled to that interest, being the one fifth of the original tract, and to two ninths of one fifth which passed to G. W. Rogers on the death of his brother J. G. Rogers, and to the two ninths of the one fifth which his mother inherited on the death of said J. G. Rogers.
Nor do we concur with the court below that for the slave Alfred, who was sold in 1856, appellant should not be responsible. In. his original answer he admits he was
In all other respects, except as herein specified, the judgment is approved; but for the errors pointed out the judgment is reversed on the original appeal, and on the cross-appeal so far as the price for which the slave Alfred was sold was refused, and the cause is remanded for further proceedings consistent herewith.
The judgment dismissing the petition as to the Stevenses is not appealed from.
Since the death of Charles Rogers nearly if not quite fifty years have elapsed. It must be assumed that there are no outstanding debts against his estate, and his heirs were entitled to the slaves and the value of those sold by appellant, subject to the agreements made with appellant and his father and mother in relation to them.