197 Ky. 777 | Ky. Ct. App. | 1923
Affirming.
This action was commenced in the Meade circuit court by two of the sons and the widow of James Gray,, deceased, for a sale of his lands and a division of the proceeds between hi® 'children and surviving widow, as. their interests might appear, on the ground that the said lands were not susceptible of 'division in kind. One of the sons, Walter H. Gray, resisted the sale, declaring that he desired his portion of the land laid off to- him.. By' his counterclaim he also sought to- have his brothers,, Wallace R. Gray and David Clarence Gray, charged with, certain loans by their father to them, as advancements and further he sought to have another tract of land, claimed by Wallace R. Gray adjudged to belong in part to the deceased, James Gray, and the said lands divided, in kind or sold and the proceeds, divided among the heirs of the said James Gray. The trial court found and adjudged the lands to be indivisible and directed a sale of the whole and a -division of the proceeds among the three sons aiid surviving widow, as their interests were made, to appear, and overruled each of the contentions, of appellant, Walter H. Gray. From this judgment Walter H. Gray appeals, insisting that it be reversed for the-following reasons:
(1) The burden of proof is upon the -appellees, Wallace R. Gray, D. C. Gray and Mary S. Gray, to show clearly that the 183 acre tract of land alleged to be indivisible without injuring the value of the joint owners was indivisible without material injury to the appellee-, Wallace R. Gray, 'and have failed to show such to be true.
(2) A tract of land containing 183 acres prima facieis divisible without material impairment of the value of' three joint owners by setting apart to one joint owner his interest therein and leaving the remainder in a body to be sold.
(3) Under section 317, subsections 3 and 4 of the. Civil Code, the lower court abused its discretion by, on, its own-motion, permitting the- appellees' to retake depositions in chief which depositions had been taken in chief by the appellees- after they had announced, “through” and after the appellant had taken his depositions, in permitting said appellees- to retake depositions, and which was not requested by the appellees.
(5) The judgment of the lower court denying the ownership of James S. Gray in .and to. an undivided three-eighths interest of 34i acre tract of land, known a's the Huffman dower, is erroneous because James S. Gray owned by purchase and deed said three-eighths undivided interest, which deeds, were duly of record, and Wallace R. Gray’s defense of fifteen years of adverse possession is not sustained by the facts because fifteen years did not elapse from the time said Wallace R. Gray purchased five-eighths interest in isaid tract up to the death of the dower holder, Mrs. Asneth Huffman, and fifteen years of possession did not elapse at any time in favor of said Wallace R. Gray as against James S. Gray, they being joint owners in the ratio of five to three in favor of Wallace Gray, after Ms purchase of said five-eighths, interest and statutes of limitations can not be invoked in favor of Wallace R. Gray as against James S. Gray, or Ms heirs.”
The widow and two of the sons insist that the lands, though containing 183 acres, are so located, surrounded and .shaped that they are not susceptible of advantageous division, and assert that a division of the lands into two or more parts will materially reduce the saleable value of each part, and that a sale of the whole will be to the substantial benefit of .all interested parties. In support of their claim that the lands are not susceptible of advantageous division, .appellees called fifteen or sixteen witnesses who, in addition to appellees, testified that the land wMch lies in the Ohio river valley next to the river .and extends only a part of the way towards the hill on which the highway runs, cannot be divided without materially reducing the value of each part. These witnesses were among the most prominent citizens of Meade county, including the ex-county judge, ex-sheriff, and other ex-officials, all of whom it appears were at the time of the giving of their evidence and before the owners of farming lands in that county, and all of whom were more or less acquainted'with the lands in controversy, being
The circuit court having read the evidence on both sides, went to the land's and made a careful inspection thereof and an investigation of the surrounding conditions. An equal number of witnesses testified for appellant in substance that the lands could be divided without materially reducing the value or use of any of the tracts, and especially did they testify that the part to which appellant Walter H. Gray is entitled could' be laid off and allotted to him without disadvantageously affecting the remainder of the tract, which they stated might be sold as a whole to as great an advantage as' if the entire boundary should be sold together.
We have held in a number of cases that a tract of farming land containing a less number of acres than the one we have under consideration now, was prima facie divisible into two or more parts without injury or loss to any of the shares. Talbott v. Campbell, 23 R. 2198; Conner v. Cox, 15 R. 140; Kirk v. Crutcher’s Admr., 145 Ky. 52. And it would seem that a tract of 183 acres. would be prima facie divisible, and so it is. But a careful reading of the evidence in this case, coupled with a study of the maps accompanying the records, convinces us that the Gray lands are so surrounded and shaped that it is practically impossible to divide them into four tracts without materially reducing the value of one or more parts of such a division. Nor could the share of appellant Walter H. Gray be laid off and allotted to him without doing the remainder of the tract an injustice, or without reducing the value of the tract so assigned to him. He suggests that his part be taken off of the 100-acre tract next to the river, which is also next to a pasisway that would lead to other lands owned by him and this appears to be the only way such portion could be assigned to him without causing Mm great inconvenience as well as doing
Another contention of appellant, Walter H. Gray, is that his father owned three-eighths of the 34-acre tract of lands known as the Huffman dower, and that this three-eighths interest should be sold and the proceéds divided among those entitled to participate in the division. The said 34 acres is now owned by Wallace R. Gray. It was laid off as dower in the Huffman estate. James S. Gray purchased three-eighths of the land belonging to the Huffman estate, and he and the heirs divided the land among themselves without the assistance of a court, each making a deed to all but the portion allotted to the grantor. In this manner James Gray divested himself of all right and title to the lands of the Huffman estate, except the 50-acre tract which was assigned to him. Pie, therefore, claimed no further interest in the lands and advised his son Walter R. Gray to buy the dower tract, which he did', paying a fair consideration therefor, and taking to himself an absolute deed. Such conduct on the part of James Gray would have estopped him in his lifetime to set up claim to the dower tract had he desired to do so. We think, however, that his deed made to the Huffman heirs for all but that part of the Huffman lands which was assigned to James Gray is a ¡sufficient answer to the claim of appellant Walter H. Gray that three-eighths' of the 50-acre Huffman dower tract belongs to the estate.
Appellant further insists that his father, James Gray, loaned money to appellant’s brothers, Wallace R. Gray and David Clarence Gray, which were advancements and which should have been charged to the said sons in the settlement of the estate, and appellant admits he received from hisi father the sum of $290.00 which should be charged to him. He says, that one of his said brothers received about $3,000.00 from their father and the others received about $2,500.00 from their father, and
Appellant insists that the trial court erred in allowing certain depositions taken on behalf of appellees read as evidence on the trial, because said testimony was taken in chief after appellees had closed their evidence in chief and after appellant had taken proof in chief, and he relies upon sections 587, 317 and subsection 3 of section 586. There is no subsection 3 of section 586. By section 587 it is provided that no exceptions, other than to the competency of the witness, or to the relevancy or competency of the testimony, shall be regarded, unless it be filed and noted on the record before the commencement of the trial and before or during the first term of the court after the filing of the deposition. We do- not think said sections of the Civil Code support the contention of appellant. Nor do the facts shown by the record support his contention in this record. Section 317 has no relevancy to the subject as presented by this record.
There appearing no error to the prejudice of the substantial rights of appellant, Walter H. Gray, the judgment is affirmed.
Judgment affirmed.