153 Ky. 739 | Ky. Ct. App. | 1913
Opinion of the Court by
Beversing.
In September, 1898, J. G-. Trimble sold to his son-in-law, J. Taylor Day, Ms old home place in Hazel Green, Kentucky, for $1,500, for which Day executed a note to Trimble, and Trimble executed to Day either a title bond or a deed for the property. Day’s habits at the time were very bad. He was drinking heavily and when drunk seemed possessed with the desire to buy land. In this way he bought during that fall a large amount of land on which he paid nothing. About the first of January, his son-in-law, who had charge of his business, deeming him incompetent to manage Ms affairs, called a family council to determine what should be done. His father-in-law, Trimble, and his two brothers, Floyd and John Day, were in this council. It was there decided that the best thing to be done was to rescind all the land trades which Day had made; that unless this was done, he would have nothing. Pursuant to this agreement between all of them, the son-in-law, McLin delivered to Trimble the writing he had executed to Day for the house and lot in Hazel Green, and Trimble’ on getting home, mailed to McLin the notes which Day had executed to him with this endorsement on it: “The contract for which this note was executed having been rescinded, this;
It is earnestly insisted for the appellees that Trimble made Day a deed to the property in September, 1898, and that the only way he could be divested of title was by a re-conveyance which was not made. (Jones v. Langdon, 8 R., 695; Martin v. Martin, 14 R., 769; Noble v. Noble, 30 R., 629; Rittenhouse v. Clark, 110 Ky., 147; Watters v. Wagley, 22 Am. St. Rep., 232; Brown v. Westerfield, 53 Am. St. Rep., 532). The circuit court seems to have decided the case in favor of the appellees on this ground;
But passing this and not resting our judgment here, whether a deed or bond was delivered by Trimble to Day, we are satisfied that Day is estopped now to set up title in him against Mrs. Mize. It has often been held that the owner of property who stands by and sees a third person selling it under claim of title, without asserting his own title or giving the purchaser any notice of it, is estopped as against the purchaser from after-wards asserting his title. (Brothers v. Porter, 6 B. Mon., 106; Davis v. Tingle, 8 B. Mon., 539; Dale v. Crutchfield, 8 Bush, 636; Morris v. Shannon, 12 Bush, 89; Amyx v. Hurt, 68 S. W., 420). In Haycraft v. Duval, 28 R., 542, the grantee, holding by a deed which had not been recorded, procured his grantor to make a deed to another for the land; and after this asserted title to the land under the unrecorded deed claiming that he had not been divested of title by the transaction. It was held that he was estopped to set up his title. In Salyer v. Johnson, 32 R., 709, where practically the same thing was done, it was held that the grantee who was of age, was estopped by the transaction but that her infant children who were remaindermen under the Tinrecorded deed, were not affected. In Griffitts v. Griffitts, 119 S. W., 784, the grantee who had not recorded his deed, caused the grantor to make a deed to a third person; and there, as in the previous cases, it was held that he was estopped to set up a title against the purchaser. There are a number of other cases to the same effect as those above cited.
While it is true that in the case at bar Day did not procure Trimble to make the deed to Mrs. Mize, still the evidence leaves no doubt in our minds that he knew of the transaction when it took place, made no objection to it, and acquiesced in it for more than eleven years after it was made. He at no time tendered back to Trim
Judgment reversed and cause remanded for a judgment dismissing the petition.