182 Ky. 18 | Ky. Ct. App. | 1918
Opinion op the Court by
Reversing.
The sole question on this appeal is whether the deed conveying 62 acres of land in Metcalfe county to Ann
The land in controversy is a portion of a larger tract of land owned by Edward W. Eubank at the time of his death. Upon the death of Edward W. Eubank and his wife, Margarett Eubank, Ann Eliza Eubank (now Ann Eliza Nichols), her two sisters, Mary Etta Eubank and Luvena C. Eubank, and her brother, David Eubank, children of Edward W. Eubank, became the joint owners of the larger tract and their interest vested prior to the marriage of Ann Eliza to T. Y. Nichols. On August 31, 1892, and after Ann Eliza’s marriage to T. Y. Nichols, her sisters, Mary Etta and Luvena, together with her brother, David W. Eubank, conveyed the 62 acres in controversy by deed, the material parts of which are as follows: . •
“This deed of conveyance made and entered into this 31st day of August, 1892, between Mary Etta Eubank, Luvena C. Eubank and David W. Eubank, parties of the first part, and Ann Eliza Nichols and T. Y. Nichols, her husband, all of Metcalfe county, Kentucky, and heirs at law of Edward W. Eubank and Margaret Eubank, dec., parties of the second part, witnesseth: that said party of the first part, for and in consideration of the sum of ($1.00) one dollar cash in hand paid, the receipt whereof is hereby acknowledged, do hereby sell and convey to the party of the second part, their heirs and assigns, following described property, to-wit: A tract of land in Metcalfe county, Kentucky, near the sinks of Bever creek and known as a part of the Edward W. Eubank farm, said second parties being heirs of said Edward "W. Eu-bank and Margaret Eubank, deed., and all of the heirs being of age have agreed on a division of said lands; said tract of land is bounded as follows:
(Here follows a description of the land.)
“To have and to hold the same together with- all the appurtenances thereunto belonging unto the party of the*20 second part, their heirs and assigns, forever, except eight acres sold to Dilly and the said party of the first part hereby covenants with the said party of the second part, that they will warrant the title to the property hereby conveyed nnto the said party of the second part and their heirs and assigns forever.”
After the execution of this conveyance, T. Y. Nichols entered, cleared and improved the land. W. W. Baize, a neighbor, says, that in the year 1911, he approached Mrs. Nichols for the purpose of buying the tract in controversy. She stated that she was not ready to sell it, whereupon he told her that when she got ready to sell it, he wanted to buy it. “The old man spoke up and said he had tried to get her to sell it but he reckoned she wanted to go down there and live on it, that he had nothing to do with it, that he reckoned she wanted to live on it after he died.” It further appears that when T. Y. Nichols died in the year 1914, he left a will purporting to devise all of his property and making no reference to the tract in controversy, though referring to other lands which he owned. On the other hand, H. B. Nichols testified that he had a conversation with his stepmother after his father’s death, in which he asked her why it was that his father’s name was in the deed. She replied that he was going to work on the place and clear and improve it, and she wanted him to have an interest in it. We may add, however, that this witness was discredited by other testimony and circumstances appearing in the record.
In support of the finding of the chancellor, Mrs. Nichols relies upon the following facts: She became vested with a joint interest in the larger tract owned by her father prior to her marriage. The purpose of the deed in question was to partition the lands of her father and to convey to her that portion to which she was entitled. The deed after mentioning the grantors and grantees recites, “All of Metcalfe county, Kentucky, and heirs at law Edward W. Eubank and Margaret Eubank, deceased, ’ ’ which statement was not true as to T„ Y. Nichols. Furthermore, T. Y. Nichols disclaimed any interest in the land and never included it in his will, although he made a will devising his other lands and disposing of all his estate.
It may be conceded that a deed conveying land to a married woman and her husband jointly may be reformed
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.