186 Ky. 763 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming.
It appears from the averments of the petition in this case that Sarah E. Lile and Mary J. Lile, elderly unmarried sisters, each owned a parcel of land in Muhlenberg county, that of the former containing 72 acres, that of the latter 58 acres, which they obtained by devise or inheritance through the death of Mark Lile, a bachelor brother. The tracts, adjoined and as the 58 acre tract of Mary J. Lile contained no buildings and the 72 acre tract of Sarah E. Lile the dwelling house and other buildings which had been occupied by the former owner of both parcels of land, the sisters both resided practically the remainder of their respective lives on the 72 acre tract, obtaining a joint support from the two tracts and sharing in common the rents and profits derived from their cultivation. While thus residing together each of the sisters executed a will. By that of Sarah E. Lile the 72 acres of land, of which she was the owner, was. devised to her sister, Mary J. Lile, for life with remainder in fee simple, at her death, to the children of their brother, Thomas J. Lile. By the will of Mary J. Lile, the 58 acres of land owned by her was devised to her sister, Sarah
The wills bear date August 12, 1896. Sarah E. Lile died in 1912. Mary J. Lile in 1913, and the will of each was admitted to probate by the Mulilenberg county court shortly after her death. It turned out however that neither testatrix at the time of her death had title to the land devised by her will; the 72 acre tract of Sarah E. Lile having by deed executed in 1909 been conveyed by her to Willie Lile, a great nephew; and the 58 acre tract of Mary J. Lile sold and, by deed of January 25, 1909, conveyed by her to one Jesse Murphy, who, by deed of December 24, 1910, sold and conveyed it to Will Gary.
This action was brought in the court below December 31, 1913, by the appellants, Lucy Phillips and others, children of Joe M. Lile, against the appellees, Jesse Murphy and Will Gary, setting up claim of title as remaindermen under the will of Mary J. Lile to the 58 acre tract of land conveyed by her to Murphy and by the latter to Gary and attacking the deeds as void on the grounds: (1) That as by virtue of an alleged parol .agreement between the sisters they lived together and enjoyed the use of their lands in common while both lived, in consideration of the execution by each of a will devising her land to the other for life, with remainder to the children of the brother named in her will, such agreement put it out of the power of either to sell or by deed convey her part of the land, the one to Willie Lile and the other to the appellee, Jesse Murphy, as attempted; (2) that the grantors were mentally incapable of understanding the transactions involved in the execution of the deeds made by them, respectively;, and that the deed from Mary J. Lile to the appellee, Murphy, was obtained by fraud and coercion practiced by him upon the grantor, in which he was assisted by Willie Lile and J. Lile, his father; which alleged fraud and coercion it was further averred also rendered void the deed from the appellee, Murphy, conveying the same land to the appellee, Gary. It does not appear -from the record before us whether or not the remaindermen under the will of Sarah E. Lile have sued to set aside the deed from her to Willie Lile.
The appellees answered separately -traversing the averments of the petition, and that of the appellee, Gary, alleging his good faith in the purchase of the land and acceptance of the deed from Murphy and denying knowl
Appellants’ first ground of attack upon the deed from Mary J. Lile to the appellee, Murphy, was insufficient to authorize its cancellation; and no claim is made by their counsel that authority can be found to support the contention. The alleged agreement between the sisters to reside, while both lived, upon and enjoy their lands in common and each dispose of her own land by will as planned in such agreement, was given no legal efficacy by the execution then, or later, of a will by each as agreed. The agreement, not being in writing, was clearly within the statute of frauds. It could not have prevented the parties thereto from revoking the wills made by them, respectively, though they were executed to carry out the agreement; nor did the existence of the wills interfere with the legal right of the makers of them to sell and by deed convey the lands that, but for their previous sale and conveyance, would have been disposed of under the devises declared by the will. A will speaks from the death of the testator and it cannot operate to dispose of property, though mentioned in and attempted to be devised by its provisions, of which the testator was not the owner at the time of his death.
Appellants’ second ground of attack upon the deed from Mary J. Lile to the appellee, Murphy, is, as we have seen, bottomed upon the theory that the grantor was mentally incompetent and that she was induced to execute it by the fraud of the grantee assisted by J. Lile and Willie Lile. We do not think the mental incapacity of the grantor is well established by the evidence. Quite a number of witnesses, one of them a physician, whose depositions were taken by appellants, testified that she was of weak mind and by reason thereof wholly incapacitated to understandingly sell a tract of land or execute a deed. But on the other hand substantially an equal number of witnesses, including two physicians, whose depositions were taken for appellees, testified that while Mary J. Lile was old, illiterate and possessed of
The $1,200.00 note, after, running until, with the accrued interest, it amounted to about $1,700.00, was credited by the proceeds of timber sold by Murphy from the land of Mary J. Lile with her consent, and the balance thereafter paid in full by the sale and conveyance to Murphy of the 58 acre tract of land by Mary J. Lile. When so discharged the balance due on the note, principal and interest amounted to something over $900.00; and this sum, according to the testimony of Murphy with $425.00 paid by him to Willie and J. Lile, $200.00 of it to be used by Willie in the purchase of a pair of mules and the remainder to J. Lile to be applied to the needs of Mary J. Lile, making altogether $1,300.00, constituted the consideration for the - 58 acres of land conveyed Murphy by her.
It is insisted for appellants that Mary J. Lile was not credited upon the $1,200.00 note with the full proceeds of timber sold from her land. According to the testimony of Murphy, corroborated by one other witness, the note was given credit for $1,000.00 as the proceeds of the timber which, except $175.00 he claimed to have paid Mary J. Lile, was all that was received for the timber. We do not find that Murphy’s testimony is contradicted as to this matter, save by that of Willie Lile, which was to the effect that the note was not credited by all the timber money and that only. $150.00 of it was paid Mary J. Lile; but he did not know or state what sum was realized, from the sale of the timber.
However, if fraud on the part of Murphy in obtaining the conveyance were conceded, or the mental incapacity of the grantor at the time of the conveyance had been shown, such fraud or incapacity would not affect the good faith of the appellee, Gary, as purchaser of the land from Murphy, or the validity of the deed conveying him the land made by the latter; for the evidence fails to show that he at the time of the conveyance to him had any knowledge of such fraud or incapacity, or was in possession of such facts as should have put him upon inquiry as to either. Moreover, although the death of Mary J. Lile did not occur for more than a year after the land was conveyed Gary, no complaint was ever made to him by her, or for her, of fraud in the purchase of the land from her by Murphy or its sale by him to Gary. Under these facts his right to retain the land cannot be questioned. Hall v. Bollen, 148 Ky. 20; Johnson’s Committee v. Mitchell, 146 Ky. 382.
As to the question of Mary J. Lile’s alleged want of capacity, the rule in this state is that the deed of a person of unsound mind is not void, but voidable. Wathen v. Skaggs, 161 Ky. 600; Breckinridge v. Ormsby, 1 J. J. Mar. 236; Johnson’s Committee v. Mitchell, 146 Ky. 382; Logan v. Van Arsdall, 27 R. 822; Dowell v. Dowell, 137
On the whole case we find no error in the judgment of the circuit court, hence it is affirmed.