169 S.W.2d 25 | Ky. Ct. App. | 1943
Affirming.
Appellee sued in ejectment to recover possession of a tract of land situate in Bell county. Appellant entered a general denial, alleged ownership and the right to recover rents theretofore collected by appellee, and sought judgment quieting his title. On motion of appellant the case was transferred to the equity docket and tried by depositions, resulting in judgment for appellee.
At one time the property was owned by Martin Head and his wife, the father and mother of both parties to this action. The parents executed and delivered a crudely drafted deed to a third son, J.R. Head and his wife, Nanie E. Head. The exact wording of which, eliminating the description of the property, is as follows:
"This deed between, Martin Head and Sarah E. Head, parties of the County of Bell and State of Kentucky, of the first part, and J.R. Head and wife Nanie E. Head, parties of the same county second party: the parties of the first dose this day bargin and sell to the party of the second part:
"Witnesseth, that the said party of the first part, in con-of $145.00 (One Hundred and forty Five Dollars) cash in hand paid. It is further agreed if not sold by J.R. Head and their isent any more heirs at my place during the life of J.R. Head and Nany E. Head at the death of J.R. Head and Nany Head the within named tract of land shall fall to Roy E. *373 Head. The receipt of which is hereby acknowledged, do hereby sell, grant and convey to the party of the second part his heirs and assigns, the following described property, viz: (Description)
"To have and to hold the same, with all the appurtenances thereon to the second party his heirs and assigns forever, with covenant of General Warranty.' A lien is retained upon the property hereby conveyed, as security for the payment of the said unpaid purchase money.
"In testimony whereof, witness our signature this 18th day of February 1918.
"Martin Head
"Sarah E. Head."
Nanie E. Head died and her husband remarried. This marriage was not successful, and we glean from the record, although it is not clear, that it was dissolved by judgment of divorce. On February 10, 1934 at which time, according to the contention of appellant, J.R. Head and his wife were anticipating a divorce, the property was conveyed to appellee, T.H. Head, under authority of the implied power contained in the granting clause of the deed recited above. The deed from J.R. Head to appellee recites the consideration to have been five hundred dollars and acknowledges its receipt. Appellee claims title through this deed.
It is the contention of appellant that no actual consideration passed for the execution of the deed from J.R. to T.H. Head; and, the recitation of such consideration was false and fraudulent. He further contends that the deed was executed for the purpose of cheating, hindering, and defrauding J.R. Head's wife in her proposed attempt to collect alimony in the suit for divorce, and for that reason the deed is void. He further reasons that since no legal transfer was made and there were no heirs other than those living at the time of the execution of the Martin Head deed, he became vested with a fee simple title to the tract upon the death of J.R. Head.
Under section
"Had this testimony been offered by Edwin Cryer, in a contest between him and Elias B. Cryer, or the plaintiff, as his heir, it would have been competent, because the declarations by Elias B. Cryer would have been against his interest. But, when they were offered in favor of Elias B. Cryer, they were declarations not against interest, and therefore were inadmissible. It is not the words spoken alone which determine their admissibility as declarations; but it is the circumstances surrounding the *375 party speaking and the nature of the litigation when the testimony is offered which determine the admissibility of the testimony."
Since there was no competent evidence offered in contradiction of the provision recited in the deed, the court properly declared appellee to be the owner and entitled to possession of the property. That being true, it is unnecessary for us to determine whether the deed could be declared void had appellant fully established the facts upon which he bases his contention.
The contention of appellant that he became vested with the fee simple title to an undivided one-half of the property upon the death of Nanie E. Head is without merit. The estate granted to him in that deed was a defeasible fee in remainder. That estate was subject to defeasance at any time J.R. Head elected to exercise the power of sale whether or not such election occurred during the life of Nanie E. Head. Spicer et al. v. Spicer et ux.,
Wherefore, the judgment is affirmed.