146 Ky. 467 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing.
The tract of 9 acres and the tract of 2 acres were the property of Amanda Orme. Her husband, John S. Orme, had no title to this land, and as to these two tracts it is conceded that the deed should not be set aside. The facts as to the other two tracts are in substance these: John S. Orme owned originally the 44 acre tract. About twenty years before his death, he bought the tract of 100 acres, and gave a mortgage on it and on the 44 acre tract to secure the purchase money. He failed to pay the purchase money, and suit was brought to enforce its payment; and in that suit both tracts were sold. Orme induced a neighbor, Lewis Thompson, to buy in the land for him at the commissioner’s- sale. Thompson said that he knew Orme would not pay for the land, but that he knew the boys (Thomas and Nimrod) would pay for it. The family continued to live on the two tracts of land and all worked in the crops. Their father stimulated them by saying that all should work. together and share together. In the-course of time the 44 acre tract was paid for to Thompson, and he then made a deed to Amanda Orme for it. A few years after this he died. At his death there was a balance of about $300 owing on the 100 acre, tract. John S. Orme brought a suit to have the
The plaintiffs charged in their reply that the deed was made to Amanda Orme for the 44 acres because John S. Orme was in debt and he designed to place the land in her name so as to prevent his creditors from subjecting it. This being true,' he could not have relief against the deed. - A court of equity will leave the debtor where it finds him when he has conveyed away his property for the fraudulent purpose of defeating the claims of his creditors. The plaintiffs claim under John S. Orme. They stand in his shoes and they can no more have relief against the deed for 44 acres than he could. This 44 acres must, therefore, be regarded as the property of Amanda Orme, and stand just like the two tracts of nine acres and two acres. She is still living and appellants can not complain of her conveyance of her property.
It remains, therefore, only to consider the validity of the deed as to the 100 acre tract, the title to' which was in John S. Orme. The proof for the plaintiffs is to the effect that John S. Orme was a man of good sense and the evidence for them does not show that his mind was not sound at the time the deed was made. There is evidence that he would have spells during the last year of his life and that during these spells his mind was much affected; but the evidence on both sides shows that aside from the'timé when he was affected by one of these spells, his mind was good. The evidence for the plaintiffs is to the effect that Thomas Orme had acquired a commanding influence over the mind of his father, and that his father would do anything he said. In February, 1902, Thomas Orme went to the county seat and employed a lawyer to write the deed telling him how to write it. The lawyer wrote the deed as directed by Thomas Orme, and after the deed was prepared Thomas Orme had the clerk to go out to his father’s in a sleigh, the ground being covered with snow. The deputy sheriff went with the clerk. When they got there John S. Orme was either in bed or on the bed. Mrs. Orme and two of the sisters were in the room. Thomas Orme asked them to leave the room. After they left the room the deed was signed by John S. Orme and acknowledged and after
The proof also shows that Thomas Orme and Nimrod Orme built a turnpike in Mason County receiving from the county about $1,200; and that this money went with the earnings of the farm to pay the purchase money to Thompson. One of the sisters went up to Mason County and cooked for them and the hands while they were building the turnpike. The other girls did the work at home until they were married and also worked in the field doing such work as a woman could do. There is also proof that Thomas Orme some years before this tried to get his father to convey to him a part of the land on which he was living, and his father refused to do it. The deed in question recites that it is made in consideration that the parties of the second part have paid nearly the whole of the purchase money for the land. Thomas Orme and Nimrod Orme are the parties of the second part, and one of the stipulations of the deed is that they are to convey to Howard Orme on his becoming twenty-one years of age a one-third interest in the land. The deed also provides that the grantors retain a life estate in 25 acres of the 100 acre tract, including the dwelling house. Howard Orme when this deed was made was but a boy and no reason is shown why he should receive one-third of the land when his sisters got nothing. They had under the evidence done as much work as he had at least. They had been provided for in no way and John S. Orme after this deed was made had nothing except the life estate which he and his wife reserved in the 25. acres of land. All the personal property on the place was claimed by Thomas Orme and Nimrod Orme. The girls received nothing.
While we are satisfied from the evidence that Thomas Orme and Nimrod Orme were good sons, and did a good part by their'father and mother, we do not see that they were entitled to everything the father had. Nothing is clearer from the evidence than that all the family worked
We are satisfied from the evidence John S. Orme loved all his children and wished to deal justly with each of them.. He wished the three sons to have the land, but he did not contemplate doing injustice to his daughters, and he intended that a provision should be made for them, probably by a charge on the land of a certain sum of money for their benefit, and SO' it was the deed was not made while he was well. When he was taken sick with a trouble that must soon end his days, Thomas Orme had the deed drawn and no provision was made for the daughters. It often happens that a sick man’s mind is apparently sound, when by reason of his weakness, • the will has lost its power to assert itself. The deed here gotten up by one of the beneficiaries is so out of keeping with the expressed intentions of John S. Orme, that in view of the situation of the parties and the unequality of the deed, undue influence should be presumed. (Smith v. Snowden, 96 Ky., 32; Hoeb v.
It is insisted, however, that the case is not so presented that we can consider it on the merits. After the pleadings had been made np, the plaintiff, ashed a jury trial. At the conclusion of the evidence for plaintiffs the court instructed the jury peremptorily to find for the defendants. The jury returned a verdict as directed by the court. The plaintiffs filed grounds for a new trial; the motion was overruled. The plaintiffs then offered to file a reply to which the defendants objected.. The reply was filed to which the defendants excepted. The defendants were then given thirty days to file their rejoinder. They filed the rejoinder; both sides then took their proof by depositions and the case being submitted on the merits, the court dismissed the plaintiffs’ petition.
If this was an ordinary action there would be much force in the contention that the merits of the case were not before us. But this is an equity action to set aside a deed. The verdict of the jury is only advisory to the chancellor. He can disregard it when he comes to render his final judgment if he sees proper. The verdict of the' jury not being conclusive in the action, it was within the power of the chancellor to disregard it and to hear the case on- its merits as finally prepared by the parties. (McElwain v. Russell, 11 R., 649; Hill v. Philips, 87 Ky., 169; Ford v. Ellis, 21 R., 1837;) This he did and he having heard the case on its merits, on an appeal from his judgment, the case is here on its merits.
Judgment- reversed and cause remanded for a judgment as above indicated.