82 Ky. 64 | Ky. Ct. App. | 1884
delivered the opinion' oe the court.
James D. Polley, residing in the city of Covington,, executed a will in the month of February, 1866, and died in May, 1879. At the date of his will, being indebted to various parties, he designated the property out of which his debts were to be paid, 1st, the proceeds of his notes; 2d, certain vacant lots in Covington, and 3d, his lands in the county of Boone. He' then proceeded • to devise to three of his children, in equal parts, the vacant lots and the Boone county land, after the payment of his debts, evidently supposing that much of this property would be left after the payment of his debts. He then proceeded to devise to three of his children, other than the devisees mentioned, certain property in the city of Covington. Before the death of the testator he had disposed of his notes, the vacant lots, and the Boone county lands, leaving no personal estate to pay his debts.
The executor filed the present action for the settlement of his estate and the payment of his debts, to which all the devisees and parties in interest were made defendants. Shortly after the will was executed, he sold a part of the Boone land to one Adams for near thirty-five hundred dollars, for which he took the notes of the vendee, the testator being indebted to his daughter, Martha Ingersoll, as guardian of her infant child, in the sum of $5,722, for the purpose of securing the
Mrs. Ingersoll, having been made a defendant ■sought, by proper pleadings, to subject the Boone county land that had been mortgaged to her to secure ■the payment due her as guardian. The children of her deceased brother resisted the sale upon several grounds:
Mrst. They allege that when the mortgage was executed on the land, their ancestors were in possession under the parol gift from their father, of which fact Mrs. Ingersoll had notice.
Second. That the conveyance made to them by the testator, although subsequent to the mortgage, contained a clause of general warranty, and that an eviction, or the enforcement of the lien depriving them of the land, would give them the right of action and recovery to the extent of the loss sustained, and this being the case, the estate left by the devisor and devised
The Chancellor below adjudged that the land mortgaged was not liable, and required the estate devised to remove the burden.
It is evident that the testator had placed his two sons in possession of this land, intending ultimately to give it to them when distributing his estate, and that they entered upon the land with this understanding. 'This is manifest from the fact that shortly after the death of his two sons he executed the conveyance to their children for no other consideration than that of love and affection. He expresses a consideration of §2,865 for each tract, but it is evident from the recital in each deed that this was the value • of the land as fixed by the grantee in the effort on his part to make an equal distribution of his estate, and, besides, it is shown that no consideration whatever was paid by either the children or the grandchildren by the two deeds.
Counsel for the appellees maintain that the parol gift vesting the two sons with an equitable interest that existed before the mortgage, the subsequent conveyance by the grandfather passing to them the legal title, destroyed any equitable right the mortgagee had for the security of his debt. We do not perceive in this branch
In Booker v. Abel, 8 Bibb, it is said that such a gift is void, and it is not pretended that the parties have been in possession such a length of time as would constitute an adverse holding vesting them with title. The two sons were in possession in the same manner the devisees were, the-property having been designated by the will belonging to each one of his children at the death of the testator. It is true these appellees take under the deeds, and not under the will, and the creditors of the testator would ordinarily be compelled, or rather his executor and devisees, to exhaust the estate left by the testator before subjecting the land conveyed to their children. The testator owning the land in Boone, and never having parted with the title, had the right to execute the mortgage upon it, and when the grandchildren accepted the conveyance they held the land subject to the mortgage previously- executed to Mrs. Inger
As between the children, and grandchildren of the testator, some holding under the deeds and the others under the will, the question of more difficulty than any ■other arises: If the testator had, in his.lifetime, conveyed this land without having executed a prior incumbrance upon it, it would, no doubt, be adjudged that his estate left at his death, if sufficient, must pay his debts, and not what he had previously conveyed to his ■children; but a different question is presented in this ■case.
The land conveyed was a gift to the grandchildren, .•and that claimed was a gift to his children, no other •consideration existing but that of love and affection in either instrument. There is a warranty of title in the conveyance to the grandchildren against incumbrances, etc., and, therefore, for a breach of the warranty the •estate, as they maintain, is liable to them for any damages they may sustain. On the other hand, it is argued that, as nothing had been paid by the grandchildren, the damages for the breach would be nominal •only. The general rule is that, in an action of covenant on a warranty for the sale of land, the purchase •money is the measure of damages, or where there is no fraud, the indemnity for the loss is the consideration paid and interest; where there is fraud, the value of the land lost is the criterion. (Lowe v. McDonald, 3 Mar.; Durham v. Ganard, 5 Mon.; Davis v. Lewis, 4 Bibb; Grundy v. Edwards, 721, Mar.; Hill v. Godden, 16 B. M.)
This court, in Hanson v. Hickman’s executors, 2
In the present case, the objection to the judgment-below is, that it requires the entire loss to fall on three of the children, who are holding under the will. The lien on the estate conveyed to the grandchildren was incumbered at the 'date of the conveyance by this mortgage debt; they' came into a court of equity asking the Chancellor to relieve them from the incumbrance by requiring the children, who are devisees to remove the incumbrance because of the warranty of their ancestor. In the attempt to do this, it is made to appear that some of the children were advanced by deed and the others by will, no consideration issuing from any of the parties, but all indebted to the bounty of the same
To a petition for a rehearing, Judge Pryor delivered the following response
The court, in considering the questions raised by counsel in this case, understood the position assumed by the appellees, and adjudged that there was no equity on the part of the sons or their children, except such as originated from the improvements made by reason of the contemplated gift. As against, the donor they could assert a claim for the value of the improvements made, but they are asserting a right to the land under a conveyance made by the grandfather to them upon the consideration of love and affection; while such a consideration is sufficient to uphold the grant, the appellees go further and require the devisees of their grandfather, who obtained their property upon a like