137 Ky. 76 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Tliis litigation involves the proper construction of the following deed: “This indenture made, this 12th day of January, 1900, between S. L. Rector and J. M. Rector, his wife, of Casey county, Ky., parties to the first part and R. S. Rector, their son, of the same county and state, party of the second part, witnesseth: That in consideration of the love and affection which they have and do bear toward the party of the second part and for the sum of one dollar in hand paid, the receipt of which is hereby acknowledged, the parties of the first part have bargained and sold and do hereby give, grant and convey unto the party of the second part, his heirs and assigns the following described land on the terms and conditions named below: [The boundary of 250 acres of land is here given.] This indenture prohibits the sale or renting of the above described leal estate during the life of parties of the first part except by their consent, the title to remain with the parties of the first part during their lives and by this indenture they forfeit none of their rights and privileges therein. Party of the second part has the right to make any improvements on the said land. To have and to hold said property unto the party of the second pa*rt his heirs and assigns forever. In testimony whereof the parties of the first part hereunto set their hands the year and day above written. ’ ’
The grantee, immediately after the execution of the deed, entered upon and took possession and con
It will be observed that the granting and habendum clauses of the deed conveyed to R. S. Rector a fee-simple title in the land, but between the granting and habendum clauses the following conditions were inserted, to wit: “This indenture prohibits the sale or renting of the above described real estate during the life of parties of the first part except by their consent, the title to remain with the parties of the first part during their lives and by this indenture they forfeit none of their rights and privileges therein. Party of the second part has the right to
The parties, by counsel, present their contentions with much ability and reasoning. We have not been cited to nor have we been able to find a case wherein a conveyance containing conditions like those contained in the deed in the case at bar has been discussed. Appellants’ counsel, in support of their contention that R. S. Rector took a fee in remainder after the death of his mother and father, and that appellee has no dower interest in the land, cited sev
Another case referred to is Northcut, etc., v. Whipp and Wife, 12 B. Mon. 65. In that case Archer Northcut devised to his wife one-half of all his land, slaves, and personal property during her life, then to her son, William L. Northcut. Pie devised the other half to William L. Northcut in fee. By another provision of his will he stated that if his son, William L. Northcut, should die before his mother without children, then that portion devised to him should go to testator’s four sisters. William L. Northcut married, and died before his mother and without children. His widow sought dower in the land. The court decided that she was not entitled to dower in the one-half which was devised to testator’s wife for life, but that she was entitled to dower in the half devised to his son, her husband, he taking the fee in that portion subject to be defeated only in the event that he died without chil
“This deed is not to take effect until the death of the grantors.” And it was held that a life estate was reserved and the child or children took a fee in remainder. These cases are unlike the one before us. In this case the homestead was not conveyed. The grantors only restrained the grantee from selling or renting the land within the lifetime of the grantors. They gave the grantee possession at once with power to improve and use the same for his sole benefit. The main thought and purpose uppermost in the minds of the grantors was to compel the grantee to reside upon the place and improve it, and therefore they prohibited the renting or
What we have said is upon the idea that the sole purpose of the condition and restriction in the deed was to compel the grantee to reside upon and improve tlie land, and that he was not to enjoy the benefits thereof by sale or renting it, and that the fee simple passed to the grantee subject only to these restrictions. Conceding, however, for the purpose of this case the construction we have given the inserted conditions in the deed to be erroneous, it appears that S. L. Rector owned the fee simple in the whole of the land, and his wife, J. M. Rector, owned only an inchoate right of dower in same, and there is nothing in the terms of the deed to change in any way their interest therein. Therefore, when S. L. Rector, the father, died, which occurred before the death of the son, the fee passed immediately to the son, subject only to the dower right of his mother, J. M. Rector. The lower court in rendering judgment in behalf of appellee committed a slight error in not taking into consideration the life interest of the mother, J. M. Rector; but, as she died before the judgment was rendered, her interest in that should have been considered as infinitesimal, and does now authorize a reversal of the case.
For these reasons, the judgment of the lower court is affirmed.