128 Ky. 50 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
This suit was brought in the Fulton circuit court by appellant Maggie Reid and her daughter, Katie Reid, the wife and child and only heir at law of J. M. Reid, deceased, for the purpose of setting aside a deed which had been executed by J. M. Reid and
Before entering upon a consideration of the real questions in issue in this case, it is necessary to determine whether or not the appellant Katie Reid has any interest whatever in the lands in controversy. The petition alleges that she has. The answer denies this right. Thus the issue is squarely and sharply drawn. If she had any interest, it must be through and under the will of her father, which, stripped of the merely formal portions thereof, is as follows: “At my death I give and bequeath all of my property of each and every description to my beloved wife, Maggie Reid, and direct that she be permitted to qualify as my executrix without bond or security, she to have said property as her own to use and enjoy as she pleases, and with power to convey all or any part of my real estate that I may own in this State or out of it.” We are of opinion that under this will the wife, Maggie Reid, upon the death of
It appears from the record: That J. ,M. Reid had for many years prior to his death engaged in the lumber business, and that he had acquired title to some 8,000 or 10,000 acres of Mississippi river bottom land. A large part, if not all, of this land, was subject to annual overflows due to the rises in the river. That at times it was all the way from 4.to 20 feet under water. That it was land unfit for cultivation, and that, by reason of its swampy condition, it .was difficult to remove the timber therefrom. That it had cost him from 50 cents to $1.50 per acre. That while it was owned by him he had cut and removed from it a good part of the higher-priced timber. That for some time prior to his death and to the execution of the deed in question he had been in poor health, and some months before his death had suffered a paralytic stroke, which for a time seriously disabled him, and from the effects of which he never fully recovered. That he was what might be termed ‘ ‘ a hard drinker. ’ ’ That he d'rank so to excess that at times he had delirium tremens. That for some time before the date upon which the deed in question was executed he had been seeking a purchaser for the land in question, and had offered to take $1.50 per acre for it. An agent of appellee company learned that this land
There is some difference in the testimony of the witnesses as to when this second stroke occurred. Some place it upon a date earlier than the date of' the execution of the deed, while others say it occured after the date thereof. We are strongly inclined to accept the latter view for the reason that appellant Maggie Reid, his wife, says that it did not occur until after the execution of this deed. There can be no question but.that after the second stroke of paralysis he had no mind whatever. After the
We come next to a consideration of the question as to whether or not the deed was changed. The pleadings charge that the word “east” was erased and the word “west” substituted, so that the record was made to read. “The west half of the. S. E. quarter, of section 21,” instead of, “The east half of the S. E. quarter of section 21.” .The original deed shows no such change. In the record in the clerk’s office it appears that the word “east” was written and a pen drawn through it, and'the word “west” written above. This seems to have been a mere mistake of the copyist, and was corrected at the time by him.; for the original deed, all in the handwriting of R. T. Tyler, shows that it was the west half that was conveyed. The record shows that J. M. Reid owned tire west half, and never did own the east half of section 21; hence the claim and contention of appellants that the deed was changed, and therefore, the contract invalidated, is without merit. From the overwhelming weight of the evidence in this case, then, we are forced to the conclusion that appellant Maggie Reid fully understood the nature and extent of the trade which she and her husband made with the appellee company, through its agent, McClure, and that the deed was
In the case of Cox v. Rogers, 77 Pa. 168, upon the death of her husband, a married woman had taken a legacy in lieu of dower, and it was held that she had ratified such election and was estopped from claiming an interest in the land after the lapse of five years; the court saying: “I know of no case in which it has been held that a lapse of time of more than five years after acts done which are usually treated as indicating an election will not be binding upon a widow and prevent her denial of an election, though the acts were done, in ignorance of her rights. ’ ’ And in the case of Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77, the Supreme Court of North Carolina held that a deed executed by a lunatic should not be set aside, where the grantee could not be put in statu quo, or where the benefit received by the grantor is actual and of a durable character, and that the heirs could not recover the land upon the ground of the incapacity of their ancestor to make a deed where it appeared that
We come lastly to a consideration of the plea of the five-year statute of limitation interposed by appellee. It is insisted for appellant that this statute has no application, and she cites and relies upon the case of Spicer v. Holbrook, 66 S. W. 180, 23 Ky. Law Rep. 1812. That case is not an authority upon the question here at issue, for the reason that this court held that that was not an ordinary equitable action brought to set aside a deed for fraud, and, upon a second appeal to this court, reported in 96 S. W. 571, 29 Ky. Law Rep. 865, this court said: “What is said in that opinion as to the effect of the deed made in 1883 is made upon the facts as they were presented to the court; it being there alleged that Mrs. Quisenberry was of unsound mind when that deed was made and continued so until her death. The language used in the opinion about the deed being void without a subsequent ratification either actual or constructive is based upon the allegations which then stood admitted upon the demurrer, that Mrs. Quisenberry remained insane until her death. The general rule is that the deed of a lunatic is like the deed of an infant, and is binding on him if not disaffirmed when his disability is removed. ’ ’ Section
For the reasons given, the judgment of the lower court is affirmed.