Malone's Committee v. Lebus

116 Ky. 975 | Ky. Ct. App. | 1903

Opinion op the court by

CHIEF JUSTICE BURNAM

— Reversing.

On tbe 30th day of April, 1872, Caleb Jones and wife conveyed by general warranty deed to Munroe D. Whitaker a small tract of land in the town of Cynthiana. The consideration therefor recited in the deed is as follows; “The said party of the first part for and in consideration of the sum of $350.00, of which $50.00 is in hand paid, and a promissory note for $300.00 with interest at six per cent, per annum, payable annually from the first day of June,. 1872, for the use of Nora Malone during her life, and at her death to Caleb Jones, but should she die within four years from this date the principal is not to be paid until the end of that time.” And a lien was reserved on the lot as security for the -payment of the $300 note. On the 1st day of July, 1873, Munroe D. Whitaker and wife sold and conveyed this tract of land to James R. Curry by .general warranty deed for the recited consideration of $50 cash, and the surrender of Whit- . aker’s note to Caleb Jones for $300, dated June 1, 1872. On the same day Curry and wife sold and conveyed the land by general warranty deed to J. A. Fennell for the recited consideration of $350, $50 of which was paid in cash, and three notes, of $100 each, payable to Caleb Jones in one, two, and five years, respectively, with interest from date, executed for the remainder; a lien being reserved to secure the payment of the unpaid purchase money. On the 9th of March, 1887, ■N. B. Wilson, as executor of A. Fennell, and Mrs. Mary Fennell, sold and conveyed this tract of land to L. F. Struve for the recited consideration of $2,300, of which $1,150 was paid in cash, and for the balance of the purchase money a note was 'executed, due one day after date, and a lien retained to secure its payment. The deed contains no reference to the lien for $300 recited in the deed from Caleb Jones and wife to Mun-roe D. Whitaker. Bj’ a series of subsequent conveyances the appellee, Lewis Lebus, became the purchaser of this tract of land. On the 12th of July 1902, the appellant, P. P. Wyles, as committee for Nora Malone, brought this action in the Harrison circuit court, in which he alleged that Nora Malone had been from her birth a deaf mute, wholly without mind, dependant upon the charity of her uncle Caleb Jones for her support and maintenance; that on the 17th day of August, 1898, she had been adjudged by the Harrison county court, on the verdict, of a jury, to be an imbecile and of unsound mind; and that he had been duly appointed her committee, and accepted the trust. He also set out the various conveyances of the lot conveyed by Caleb Jones and wife to Whitaker in April, 1872, and alleged.that none of the installments of interest on the $300 note for which a lien was reserved in the conveyance of dones and wife to Whitaker had been paid to Nora, or to any one for her use and benefit, and prayed that the deed to the appellee, Lewis Lebus, the last vendee of the tract of land, should be corrected so as to set nut the reservation in her favor contained in the deed from Jones to -Whitaker, and for a judgment for $18, the interest as of the 1st day of June, of eac-h year from 1873 to1 1902, inclusive, with interest from their respective dates until paid. The defendant, Lebus, filed a general demurrer to the original and amended petitions, which was sustained, and plaintiff’s petition dismissed, and he has appealed.

It is contended for appellee that as plaintiff failed to allege that the $300 note was delivered to Nora Malone, or to any one for her use and benefit, or that Caleb Jones himself held it for her benefit, it was not a valid or enforceable gift, and that when the donor, .Jones, surrendered this note, and accepted in lieu thereof three notes, of $100 eac-h, in which no interest was reserved for Nora Malone, all claim for interest on the $300 note which she might have had terminated. It is also contended that the plaintiff’s claim, if it ever existed, is barred by the lapse of time and the statute of limitations.

To constitute a valid gift inter vivos of personal property, the gift must be voluntary, gratuitous, and absolute, and take effect at once, and ordinarily must be accompanied by a delivery of the thing to the donee, or to some one for her- use and benefit. But this is not always required. As said by this court in Williamson v. Yeager, 91 Ky., 286, 13 R., 273, 15 S. W., 661, 34 Am. St. Rep., 184: “If one delivers possession of personal property to a trustee to hold as a gift for the donee, it is a valid gift; and if he expressly says, or does acts amounting to the same thing, that he constitutes himself a trustee to hold the property for the donee, we perceive no reason why this should not be as valid and binding as a delivery of the property to a third person to be held for the donee.” And in Krankel’s Executrix v. Krankel’s Executor, etc., 104 Ky., 745; 20 R., 901; 47 S. W., 1084, it was said: “The general doctrine is well settled that a completed parol voluntary trust is enforceable, and, in order to render such a trust valid and enforceable, the donor need not use any technical words or language in express terms creating or declaring the trust, but must employ language which shows an unequivocal intention on his part to create or declare a trust in himself for' the donor.” The reservation in the deed from Jones to Whitaker of the interest on the $300 note for the use of Nora Malone during her life is unequivocal, and sufficiently explicit to create a valid gift thereof to" the beneficiary, Nora Malone; and, having been once made, it was beyond the power of Jones to thereafter revoke it without the consent of the donee. The note was not by its express terms' to mature during the life of Nora Malone, and at her death it provided that the principal was to be paid to the donor., It was therefore natural and proper that he should have retained its possession. Besides, if as alleged, Nora Malone was an imbecile or a person of unsound mind at the date of the gift, no acceptance thereof by her was essential to render it valid, as the law' will presume an acceptance on her part. See Pennington v. Lawson (23 R., 1340), 65 S. W., 120, and Bunnell v. Bunnell (23 R., 800-1101), 64 S. W., 420. A purchaser of real propeidy must look to the records for evidence of title, and when it is there shown to be incumbered with liens in favor of a third person, he is presumed to have purchased with such knowledge and subject to such conditions, and himself becomes a trustee for the beneficiary with respect to the property, and is bound in the same manner as the original trustee from whom he purchased. See Jones on Liens, secs. 1083, 1084, 2 Pomeroy’s Eq. Jur., sections 581, 688; and Johnston v. Gwathmey, 14 Ky., 317, 14 Am. Dec., 135. Nor is appellee’s contention that appellant’s claim is stale and barred by the statute of limitations maintainable — at least in so far as her claim to the annually accruing interest is not within the statute.

For reasons indicated, the judgment is reversed and cause ¡remanded, with instructions to overrule the demurrer, and for further1 proceedings consistent with this opinion.

Petition for rehearing by appellee overruled.