147 Ky. 762 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
Richard Syck, a resident of Pike County, Kentucky, died in the year 1891. He left surviving him Sallie A. Syck, his widow, and five children, namely: Oscar Syck, Polly Williams, Richard Syck, Jr., W. B. Syck and Orpha Ratliff. At the time of his death, he owned a tract of land on Cloe Creek, supposed to contain about 223 acres. On December 4, 1897, decedent’s widow and children conveyed the aforesaid tract of land to R. A. Hellier. At the time of the conveyance, Oscar Syck was an infant, and Polly Williams was a married woman, whose husband did not unite with her in the deed and had not theretofore made conveyance of the property to the grantee. On January 26, 1901, R. A. Hellier and wife conveyed the surface of the land to Anna L. Huffman for life, with remainder to her bodily heirs. Thereafter, Anna L. Huffman died, leaving surviving her two children, Elinor Hatcher and Joe Huffman, both infants. R. A. Hellier died in the year 1907, intestate, and left surviving him his widow, Lyda E. Hellier, and two infant sons, Charles E. Hellier and James Eárl Hellier, On August 19, 1902, the Big Sandy Company purchased the coal and mineral rights in the land in controversy.
This action was brought by Oscar Syck and Polly Williams to recover a one-fifth interest each in the land in controversy, on the ground that the deed which they executed in the year 1897 was invalid as to them. The trial court gave judgment against them. On appeal to this court, the judgment was reversed and the cause remanded, with directions to' enter judgment in favor of plaintiff. Syck v. Hellier, 140 Ky., 393. In remanding the cause, the court said:
“If the land is susceptible of division without materially impairing its value, it should be divided and the
On the .return of the. case no additional proof was ■taken, but the court, upon the facts before him, adjudged that the land was susceptible of division. Thereafter, he" appointed three commissioners to divide the land, one of them being the county surveyor. One of the commissioners failed to act, but the other two qualified and filed their report. Exceptions to the report were filed and overruled.
The case being referred to the Master Commissioner, he found that R. A. Hellier paid to Sarah A. Syck the sum of $446 on December 4, 1897. As this money was used by her in discharging her husband’s debts, and plaintiffs, below received the benefits thereof to the. extent of their respective interests, they were charged in the Commissioner’s report with two-fifths of said sum, ■with interest from the time of payment. They were also charged with two-fifths of the amount of taxes paid, with interest thereon from the time of each payment, the whole amount aggregating $141.06. The defendants below were charged with timber to the amount of $525, for two-fifths of which plaintiffs were given credit. The ' Commissioner also fixed the rental value of the land at $25 for a period of •twelve years, making a total of $300, and charged the defendants with two-fifths of this sum. To this report exceptions were filed by both plaintiffs and defendants. Upon submission of the case on the exceptions, the" court fixed the value of the timber taken at $375, and allowed ■the plaintiffs credit for this sum as of Deember 2, 1904.
The court did not err in-.adjudging, without further proof, that the. land was. susceptible, -of division. . Plainiiffs • were to have one-fifth -each of the land in controversy, while the two defendants were, entitled to the- remaining three-fifths.' There, being about 183 acres of land, the presumption is that it could be divided without -materially impairing its value. Had the defendants dé.sired to . show the-contrary,- they should-have introduced proof on the question. In the absence of- such proof, the judgment of the .trial court will not- be disturbed. The fact that one of the commissioners appointed -by the .court to make the division was a witness for plaintiffs as to the rental value of the land, did not- disqualify him from acting as commissioner. While exceptions were .filed on the ground that the land was not -divided according to quality and quantity, no proof was introduced tending to show that the division was unfair. Furthermore, plaintiffs, through their attorney, offered in open court to take, their shares out of the three-fifths allotted to the defendants, and to turn over to the defendants the two-fifths allotted to them. Upon the defendants declining to do this, and there being no proof of any inequality in the partition, the court properly overruled the exceptions.
It appears from the record that about 120 trees were cut and removed from the land by James Williams, husband of Polly Williams, and Sam Huffman, the husband of Anna L. Huffman. There is some evidence to the effect that this was done pursuant to a contract made with Anna L. Huffman, the life tenant. At the time this was done, Elinor Hatcher and Joe Huffman were both under ten years of age. It matters not whether this timber was removed with or without the authority of Anna L. Huffman; under no circumstances could the infant defendants, Elinor Hatcher and Joe Huffman, be charged with the value of the timber. The life tenant
We see no reason for disturbing the rental value of the . land in controversy, as fixed by both the commissioner and the circuit judge. In the judgment, the infant defendants ar.e charged with the rental value of the land for a period of thirteen years, or from the time when conveyance was first made to a R. A. Hellier. The infants should not be charged with rent during the time that R.'A. Hellier had possession of the premises, or during the time that their mother, Anna L. Huffman, the life tenant, had possession of the premises. They should be charged with rents only from the time that they became possessed of the property; that is, from the date of their mother’s death. 'Upon the return of the case-, this date may be fixed by agreement, or, in the absence of an agreement, the court may hear proof thereon.
Judgment reversed, and cause remanded, with directions to enter judgment in conformity with this opinion.