51 Ky. 433 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
Judith H. Young, on the 13th of September, 1815, conveyed to her son, Willoughby Young, a tract of land in Mason county, by a deed of gift, setting out a merely nominal consideration, which contains a reservation expressed in the following terms:
“And it is further understood and agreed between the parties, that the said Judith H. Young is to reside on the land during her life, or so long as she may think proper.”
Willoughby Young, the conveyancee, died, (his mother surviving,) and left one child only, (a daughter,) Ann Maria Young, who intermarried with George M. Proctor. George M. Proctor and his wife, after the death of Willoughby Young, conveyed the same land to W. H. Power by deed, dated October 2, 1840. Power and wife then re-conveyed the land to G. M. Proctor, by deed dated the 25th of March, 1841.
Proctor, by this device of the conveyance to Power, and of Power’s re-conveyance to him, supposing that
At the date of these conveyances to and from G. M. Proctor, Ann Maria, his wife, who was daughter oí Willoughby Young, deceased, was an infant and under twenty-one years of age; and Judith H. Young, from whom the title can only be derived, was living.
Mackey institutes this suit in chancery to enforce his lien upon the land, alleging that he had paid a large amount of money as surety for Proctor, and demanding a foreclosure of his mortgage. John M. Duke becomes a party to the suit, and concurs with Mackey in prosecuting the same against Proctor and his wife and Judith Young and others, demanding that the land be sold, and claiming rents and profits. Before the suit is finally terminated, Ann Maria dies, and the1 suit is then by bill of revivor prosecuted against her two infant children. In the further progress of the suit Judith PJ. Young, who had thus survived both her son Willoughby Young, and her grand-daughter Ann Maria Proctor, also dies, her administrator is by amended bill made a party.
Ann Maria Proctor, previous to her death, filed her separate answer, and relied upon her infancy to avoid the deed to Power and the mortgage to Mackey and Duke, and after her death her children, by their guardian ad litem, answer and insist -upon their title to the land and the invalidity of the deeds which their mother had been induced to execute whilst she was an infant.
Upon the state of case as presented, Proctor never had any right or title, to the land in contest to convey to Power, Mackey, or Duke. It is clear that, as Mrs. Proctor was an infant at the date of the deeds, which
The decree of the Circuit Court, of May, 1846, and of March, 1851, both being approved by this Court, and consistent with this opinion, it is not necessary to decide the question presented in the pleas filed; and issue made up in this Court, whether it be final or interlocutory, the decree of May; 1846, not being in conflict with the final decree rendered in the cause; and both being rendered in conformity with the views of this Court, the same are affirmed.