194 Ky. 195 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
For many years before March, 1911, James I. Helton and his wife, Nancy Helton, owned and resided on two adjoining tracts of land in Leslie county, Kentucky. They decided to sell out and buy land in Garrard county. They were then very old and had no children nor descendants.
The deed from Johnson and wife to James I. Helton and Nancy Helton, bearing date April 8,1911, is so indefinite and uncertain in its terms as to cause confusion and to give rise to the claim of appellant Saylor to the whole tract of land, which claim resulted in this particular branch of the litigation. Insofar as it is relevant the deed from the Johnsons to the Heltons reads:
“This deed of conveyance made and entered into this 8th day of April, 1911, by and between Sam Johnson and Sarah Johnson, his wife, of Garrard county, Kentucky,*198 grantors and James I. Helton and Ms wife, Nancy Helton, of Leslie- county, Kentucky, grantees.
“Witnesseth.: That for and in consideration of the sum of twenty-five hundred ($2,500.00) dollars to grantors, cash in hand paid, the receipt of wMch is hereby acknowledged, do sell and convey unto grantee,- his assigns and heirs a certain tract of land lying and being in Garrard county, Kentucky, on the waters of Harmon’s Lick creek, and bounded as follows. (Here follows description).
“The said grantees are to have and to hold the land herein described with all its appurtenances thereon to him, the said James I. Helton, and his heirs and assigns forever. ’ ’
It will be observed that the deed in its granting clause names “James I. Helton and his wife, Nancy Helton, of Leslie county, grantees.” This is definite and certain, but in the sarnie sentence is the following: “do sell and convey unto grantee, his heirs and assigns, ’ ’ which makes the granting clause somewhat indefinite- and uncertain, for it would appear from the last phrase quoted that there is but one grantee, and that such person is masculine. The habendum¡ clause reads: “The said grantees are to have and to hold the land herein described with all its appurtenances thereon to him, the said James I. Helton, and his heirs and assigns forever,” which would clearly indicate that James I. Helton alone is the grantee, and that Nancy Helton took no part of the land in fee.
The evidence shows that James I. Helton owned a tract of about 100 acres of land in his own name in Leslie county, and that his wife, Nancy Helton, owned a junior survey, containing about 200 acres, adjoining that of' her husband, and that when they decided to sell the Leslie county lands Helton priced it to Wilson at $15.00 per acre, intending to sell only that which he himself owned, but when Wilson came to the Helton home for the purpose of closing the deal at $15.00 an acre- Helton declined to sell at that price but offered to take $20.00 per acre for it. Then Wilson asked Helton what he would throw in if he took the land at $20.00 per acre, to which Helton replied that he would give him certain household furniture then in the. Helton home; he would also give him a number of beehives and bees, which were then on the premises, and finally agreed to give Wilson the junior survey owned by Nancy Helton. Wilson accepted this proposition and the Heltons made to Wilson two deeds, one for the tract
Appellant Saylor insists that Mrs Helton cannot have a reformation of the deed in question, (1) because she is a voluntary and gratuitous grantee, (2) the statutes of limitation, sections 2515 and 2519, bar her cause of action, if any she ever had. We have already disposed of the first contention of appellant, and his last contention is equally untenable. This deed was made in 1911 and the suit brought by Saylor in 1918. Under the statute, section 2515, an action for relief oil the ground of fraud or mistake must be commenced within five years after the accrual of the right, and by section 2519 the cause of action is deemed to have accrued upon the discovery of the fraud or mistake, but in no event can such an action be commenced after the lapse of ten years from the happening of the fraud or mistake. Construing these sections together we have held that ‘ ‘ if more than five years have
Judgment affirmed.