295 S.W. 863 | Ky. Ct. App. | 1927
Reversing.
In August, 1918, a certain house and lot was conveyed to Harold S. Petty and his wife, Nellie J. Petty, jointly "for and during their joint lives with remainder in fee to the survivor of either, their heirs and assigns forever." At the same time Harold and Nellie executed 16 joint notes of $100 each, due three months apart, and one note for $900, due 4 1/2 years from date, and also executed a joint mortgage upon the real estate named to secure this indebtedness. Harold died in April, 1923, and his widow qualified as administratrix. In July, 1924, Harold's mother, Antha A. Petty, sued Nellie A. Petty individually and as administratrix upon a note payable to plaintiff, and executed by Harold S. Petty on February 12, 1920, for $3,000, subject to a credit of $1,000. She sought personal judgment against both, and also to subject the real estate mentioned to the payment of the debt. It was alleged in the petition that the money loaned by her was used in discharging the mortgage and in making improvements upon the property for the benefit of the defendant, and for that reason she was entitled to be subrogated to the rights of the mortgagee, and, if not entitled to that relief, that a lien be adjudged in favor of the decedent's estate for her benefit. The court overruled a demurrer to the petition as amended, and the defendant answered, denying that the money was used in discharging the mortgage debt or in making improvements, or that H.S. Petty paid any part of her share of their joint indebtedness. She also pleaded the five year statute of limitation, to which a demurrer was sustained, and, upon the issues joined, proof was taken and the *571 court adjudged the plaintiff a lien upon the real estate in the sum of $1,250, and adjudged a sale enforcing the lien. The defendant, Nellie Petty, appeals.
It is urged first that the court erred in overruling a demurrer to the petition. That pleading alleges a joint indebtedness to the bank secured by a lien on the joint property; that Harold borrowed the money evidenced by the note for the purpose of paying this indebtedness; that it was so used and the lien released, but it is not alleged that Harold paid the debt, nor is it alleged that Nellie has not paid nor satisfied Harold for any obligation arising thereby. As to this it may be said that one who pays a joint debt is entitled to contribution from his co-obligors and that a tenant who relieves common property from a lien is subrogated to the lien on his cotenant's part for the excess he has paid over his proportionate share. We think this rule applies with equal force to a joint tenancy with survivorship. It is true that upon the death of Harold appellant became the owner of the fee, not as heir of her husband or through him, but by virtue of the deed (Ky. Stats., section 2143; Harris v. Talliferro,
As the pleadings may be amended and other proof taken upon such amendments, it is well to consider the exceptions to the evidence now appearing therein. The plaintiff introduced in evidence several checks and notes, and undertook to detail certain transactions with her deceased son, and also testified as to a conversation with appellant thus: "She asked me when I could let them have the money, or when I was going to let them have it," and I said, "Whenever you want it;" in another place, "Well, I don't know that she said anything in particular, but just wondered when they could have the money, as they were anxious to improve their home" — it not appearing that she ever talked to either in the presence of the other. She also states that she sold her farm for $5,000; that she lived in appellant's home for over a year, in the years 1918 and 1919. The lower court properly ruled that her testimony as to acts or conversations or transactions with Harold Petty was incompetent on the hearing of the issues between her and the estate of Harold Petty, but held such evidence competent in favor of Harold's estate as against Nellie Petty. In this the court was in error. Plaintiff was the real party in interest, and her testimony was inadmissible. See Combs v. Roark,
For obvious reasons the court expresses no opinion as to the effect of the competent evidence left in the record.
Wherefore the judgment is reversed and cause remanded for proceedings consistent with this opinion. *574