203 Ky. 415 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
'Johanna Bouse died a resident of Daviess county in March, 1916, leaving surviving her, her 'husband, Lindsay Bouse, and two children, C. B. Bouse and Mary A. Bouse, now Lanham. At the time of her death the family lived on a tract of thirty-eight acres of land conveyed by J. H. Hickman on April 20, 1895. The deed was recorded and, as recorded, the grantee in the deed was “Johanna Bouse wife of Lindsay Bouse:”
On August 7, 1920, the daughter Mary A. Rouse, now Lanham, filed this action against her father and brother in which she set out the facts above stated, and alleged that when the summons in that action was delivered to her by the sheriff she informed her father, with whom she was then living on the land, and asked him what it meant, and she was told by him that it did not and would not affect her or her rights in any way; that it was only a legal form to settle up the estate of a decedent, and that it was not necessary for her to make defense and for her not to worry about it; that, relying on this information from her father she did not make defense to the action and did not know that any judgment had been taken in the case against her until just before this suit was filed. She also alleged that her mother owned the land and always claimed it from the time the deed was made, and that her ownership of it was recognized in the family. She prayed that the judgment be set aside and a new trial granted her; that the deed from Lindsay Rouse to C. B. Rouse be can-celled, and that she be adjudged the owner of one-half the land subject to her father’s life estate therein. The defendants filed a joint answer controverting the allegations of the petition; proof was taken and on the final hearing the court adjudged the plaintiff the relief sought. The defendants appeal.
It is also objected that the petition filed by appellee does not sufficiently set out the proceedings in the former action. We do not see that there was any substantial defect in this respect; a copy of the record is made a part of the pleading and after the second suit was filed, without objection, the action for a new trial was consolidated with the old action. In this way the old record was before the circuit court and is before this court.
The deed had been recorded more than twenty years when Johanna Bouse died. During all this time the family lived on the land and the deed was there in the house. The proof is convincing that Mrs. Bouse always understood that it was her land. The fact is undisputed that she held the title to another tract in Daviess county, which she and her husband traded for a house and lot in Owensboro, and the deed to this property was made to her. Later they traded the house and lot in Owensboro for the thirty-eight acres of land, and no reason is shown why this property should not have been deeded to her, as the property given in exchange for it was hers. The fact that the title had -stood in her name for twenty years, and until after her death, is not without force. It is true the original deed shows that the words “Johanna Bouse wife of” were interlined in the deed just before the words “Lindsay Bouse,” and this interlineation has now been erased; but the interlineation must have been made before the deed was recorded in the clerk’s office, for these words are recorded there. Appellee testifies that these words were in the deed after her mother’s death and were after-wards erased. In view of the facts above stated this is the most reasonable conclusion as to when this erasure was made.
It is earnestly insisted that the proof does not sustain appellee’s allegations -as to the default judgment being obtained against her by reason of the representations of her father to her as above stated. But on questions of fact like this turning on the credibility of the witnesses, this court gives weight to the finding of the
It is earnestly insisted for C. B. Rouse that he is a purchaser for value without notice and in good faith under the judgment obtained by the father in the first case and that as to him the judgment appealed from, adjudging appellee the owner of one-half the land, subject to the father’s life estate, is unwarranted. But C. B. Rouse did not plead that he was a purchaser for value without notice of the infirmity in the judgment. He simply joined in the answer filed by his father traversing the allegations of the plaintiff’s petition and in no wise set up any rights in him superior to the rights of his father. A bona fide purchaser under a judgment is protected when the judgment is afterwards opened for some infirmity in it, but to obtain this protection the purchaser must plead the facts showing his right to protection. The burden is on the purchaser to plead and, if denied, to show that he purchased the property without notice of the infirmity in the judgment:
“A stream rises no higher than its source. Ordinarily a vendee gets no more than his vendor has. But an exception is made in favor of a bona fide purchaser without notice. He is not bound by secret trusts existing against his vendor. To entitle him to this advantage, however, he must plead the facts showing that he is a bona fide purchaser without notice.” Deskins v. Big Sandy Co., 121 Ky. 601.
*419 “The plea of being an innocent purchaser for value without notice is a defense which must be pleaded.” Brogan v. Porter, 145 Ky. 587.
This Bouse did not do.
In addition to this the proof shows he lived only a few hundred yards from his father and mother; he was frequently at the house; he knew about the deed as well as the other members of the family; he knew of his sister’s claim to one-half of the property; and the evidence is rather persuasive, that the father had conceived the purpose of vesting this land in the. son to the exclusion of the daughter, and that the conveyance in question was made in furtherance of this purpose.
Judgment affirmed.