137 Ky. 39 | Ky. Ct. App. | 1909
Opinion op the Court by
— Reversing.
In 1882 Eli Hall conveyed by deed to Ms son, Joseph. Hall, a tract of land in Letcher county, Ky., containing in round numbers 2,000 acres. In this deed the wife of the vendor did not join. In 1885 Eli Hall and his wife conveyed to Joseph Hall and his children in round numbers 1,500 acres of the same land that was embraced in the deed of 1882; it being claimed by appellants that the last deed was a substitute for the first, and made to carry into
On October 17, 1900, the children of Joseph Hall, who are the appellants in this action, instituted' an
On July 29, 1901, the Aultman & Taylor Machinery Company filed an action in the Letcher circuit court against the children of Joseph Hall and against Morgan & Wootton, their attorneys, in which it was alleged that the claim of Morgan & Wootton to a lien upon the land to secure their fee of $500, and the claim'of the children of Joseph Hall to be tenants in remainder after the death of their father, cast a cloud upon its title to the land, and it prayed for a judgment quieting its title as against the defendants.
Afterwards, in July, 1904, Joseph Hall, the father, being dead, the appellants, his children, instituted this action in the Letcher circuit court against the Aultman & Taylor Machinery Company and John W. Wright, claiming to be the owners in fee simple
After the case returned to the circuit court an answer was filed, which, among other things, claimed that the copy of the deed from Eli Hall and Polly Hall, his wife, to Joseph Hall and his children, was not a true copy of the deed as recorded in the county clerk’s office; that in the deed as recorded the words “and his children,” following the words “Joseph Hall” in the caption of the deed filed by the plaintiff, do not appear, and it is claimed that under the
We do not find it necessary to enter into the question as to whether or not the words “and his children” were interlined in the original deed of 1885, as claimed by the appellee, after the deed was recorded. For the purposes of this case we will assume that the words “and his children” did not follow the name of Joseph Hall, as grantee, in the caption.
The question then recurs: Assuming that the words “and his-children” are not in the caption, what interest, if any, had the children in the deed recorded? When the-case was before us on the former appeal, it was argued that although the words “and his children” followed the name of the vendee, Joseph Hall, in the caption and also followed it in the habendum, inasmuch as they were omitted in the granting clause, the conveyance of the title was to Joseph Hall alone, and the words “and his children” were words of inheritance synonymous with “heirs.” This question was discussed at great length in the
But it is insisted that the deed as actually recorded is different from that discussed on the former appeal; this difference, as said before, being simply the omission of the words “and his children” after the name of Joseph Hall in the caption, the habendum remaining precisely the same and being to “Joseph Hall and his children.” The question then arises: Does the omission of the words “and his children” after the name of Joseph Hall in the caption. change the title of appellants? We think not. The very question we are now discussing arose in the case of Baskett v. Sellars, 93 Ky. 2, 19 S. W. 9, 13 Ky. Law Rep. 909. There the grant was to A. H. B. Early and his son, T. L. Parly, parties of the second part, and the habendum was: “To have and to hold to them, my said daughter and son, raid their children forever,” etc. It was held that the son and daughter took only a life estate, and their children took the fee simple in remainder. We have examined the deed as it appears in the record in the case cited, and it is identical with that under discussion; that is, the words “and their children” do not appear after the names of the vendees in either the caption or the granting clause, but do follow the names in the habendum. This case is conclusive of the question, and we therefore adhere to our former opinion in Hall v. Wright, supra. See, also, Bodine’s Adm’rs v. Arthur, 91 Ky. 53, 14 S. W. 904, 12 Ky. Law Rep. 650, 34 Am. St. Rep. 162.
The question remains, however, whether or not, with the deed of 1882 on record, a stranger dealing with the son would be affected by the terms of the subsequent deed when recorded. In the instant case it is clear that the Aultman & Taylor Machinery Company had actual knowledge of the substitution;
In Am. & Eng. Encyc. of Law (1st Ed.) vol. 3, p. 891, it is said: “If a new agreement be made which is inconsistent with the former agreement, so that they-can not subsist together, the old one is impliedly discharged by the new one.” To the same effect is Rhoades v. Chesapeake & Ohio Ry. Co., 49 W. Va. 494, 39 S. E. 209, 55 L. R. A. 170, 87 Am. St. Rep. 826; Redding v. Vogt, 140 N. C. 562, 53 S. E. 337, 3 Am. & Eng. Ann. Cas. 312.
In Warvelle on Vendors, vol. 2, p. 970, it is said: “One of the most common forms of rescission by mutual agreement consists of what is termed novation; that is, the entering into a new contract which takes the place of the original one, and in which it is merged .and extinguished. If the new contract in express terms rescinds the old one, no question can arise; yet the same result follows, as a necessary implication, and takes place by operation of law, without any express agreement to that effect, whenever the new contract is manifestly in place of or inconsistent with a former one, or which renders a former contract impossible of performance.” As said before, the Aultman & Taylor Machinery Company had actual notice of the substitution, and, therefore, can
The only remaining question is the effect of the agreed judgment carrying into effect the compromise made by the brother of appellants, Eli Hall, in the suit of Aultman & Taylor Machinery Company against appellants. It is shown indisputably that Eli Hall was without any sort of authority from his brothers and sisters to compromise the case. That he did so on his own responsibility and in fraud of the rights of his brothers and sisters is practically admitted or, at least, not denied. The rule is well settled that an attorney employed to defend a case has no authority to compromise it, unless specially authorized by his client. Harrow et al. v. Farrow’s Heirs, 7 B. Mon. 126, 45 Am. Dec. 60; Grivens v. Briscoe, 3 J. J. Marsh, 529; Harrodsburg Sav. Inst. v. Chinn, 7 Bush, 539; Brown v. Bunger, 43 S. W. 714, 19 Ky. Law Rep. 1527; Cox v. Adelsdorf, 51 S. W. 616, 21 Ky. Law Rep. 421; Benedict v. Wilhoit, 80 S. W. 1155, 26 Ky. Law Rep. 178.
Eli Hall had no greater authority than if he had been a regular attorney, and, therefore, he had no authority to act for them in compromising the action. This being true, the judgment which is sought to be vacated in this action was a fraud upon the rights of the appellants, and brings the case directly within the purview of section 518 of the Civil Code of Practice, which authorizes in such cases the granting of a new trial.
Judgment reversed for proceedings consistent with this, opinion.