135 Ky. 403 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
Tlie appellants, J. L. R. Maddox and Mary F. Maddox, his wife, are very old people, who live in Ohio county, ICy. On the 30th day of July, 1900, they conveyed by deed to their two sons, Moses R. Maddox and J. L. R. Maddox, Jr., a tract of land in Ohio county, containing 243 acres, more or less, and which is set out by metes and bounds in the petition. The consideration for the conveyance was that the two
It appears that the $200 was paid to the brother, and the sons undertook to, and did for a while, support their parents. One of the sons, J. L. R. Maddox, Jr., afterwards became insane and was sent to the asylum, where he has since died, leaving a wife and two children, who are the appellees.- After the death of J. L. R. Maddox, Jr., this suit was instituted by the grantors to have the deed set aside and annulled for a failure of consideration — it being alleged that J. L. R. Maddox, Jr., was dead; that the infant defendants and their mother, Mattie F. Maddox, were unable to support the grantors or carry out the covenant made by the husband and father; that they were without means of any sort, and had abandoned the place, and done nothing towards the support or maintenance of the grantors for two years. The other son, Moses R. Maddox, in his pleading expressed a willingness to carry out the covenant in the deed so far as he is able, but alleges that he is unable to support his parents by himself without the aid of the other covenantor. lie states that he is willing to pay his brother’s children $450, and then take the whole land and carry out the covenant, and alleges that he has already paid to his brother, W. P. Maddox, the $200 stipulated in the deed from his father and mother. To the petition a general demurrer was interposed, and sustained by the' court; and, the plaintiffs having declined to plead further, the petition was dismissed.
"We are of the opinion that the court erred in sustaining the demurrer to the petition. So far as the
For these reasons the judgment is reversed, for further procedure in accordance with this opinion.