172 Ky. 658 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
Evin Scott owned a large boundary of d in Pike county, which he divided among his children. Among those who received conveyances were Crit Scott and John W. Scott. On November 30th, 1891, Crit Scott conveyed his land to his wife, Pricy Scott, “and her bodily heirs by Crit Scott,” the deed reciting “that the said party of the first part, for and in consideration of the. sum of the love and affection that I have for my wife and children,” etc. The deed was recorded on December 3rd, 1891. When the deed was made Crit Scott believed that he was about to be sued for slander, and he executed the conveyance to prevent the property from
Claiming to- own the land as remainderman, subject to their mother’s life estate, plaintiffs, Daisy Scott, Alice Scott, Mirtie Scott and Minerva Scott, .children of Pricy Scott and Crit Scott, brought tMs suit against John W. Scott and his wife to quiet their title, to correct the deed under which they held and to enjoin future waste and recover damages for prior waste. The petition was dismissed on the ground that the conveyance from Crit Scott, to his wife and children was voluntary and fraudulent, and that John "W. Scott and his wife were bona fide purchasers for value without actual notice of the conveyance to Pricy Scott’s children. The children appeal.
The first question to be determined is what estate, if any, did plaintiffs acquire in the land by virtue of the deed of November 30th, 1891? The rule that a conveyance to one and “her bodily heirs” or the “heirs of her body” creates an estate tail, which, by our statute, is converted into a fee, does not apply where there is something else in the deed from which a reasonable inference can be drawn that the words were used in a sense different from their legal or technical signification. In the conveyance under consideration, the party of the second part is Pricy Scott “and her bodily heirs by Crit Scott.” The grant is to “the party of the second part, their heirs and assigns.” The habendum clause is “unto the party of the second part, their heirs, and assigns forever.” Not only so, but the deed shows that it was made in consideration of the love and affection which the grantor had for his wife and children. It is apparent, therefore, from the other provisions of the deed, that the words “her bodily heirs by Crit Scott” were not
But it is insisted that as the deed from Crit Scott to his wife and children was not only voluntary but fraudulent, the rights of John W. Scott and his wife are not affected thereby, because they paid a valuable and adequate consideration for the land without actual notice of the fact of the prior conveyance to Pricy Scott’s children. Under our statutes, a conveyance which is actually fraudulent as to the grantor’s creditors is void as to subsequent purchasers for value, from the grantor, such purchasers not being affected by either actual or constructive notice of the conveyance; and a conveyance which is merely voluntary and, therefore, only constructively fraudulent, is void as to such purchasers, unless they have actual notice of the conveyance, constructive notice not being sufficient to affect them. Kentucky Stat
In view of the state of the record and of the fact that such questions have not been passed on by the chancellor, we refrain at present from expressing any opinion on the liability of Pricy Scott and Crit Scott to the defendants, John W. Scott and wife, under their covenant of general warranty, or on the question of waste and improvements between plaintiffs and defendants, but it is best to remand the case, with directions to the chancellor to consider and pass on these questions after the parties have been given an opportunity to take further proof if they so desire.
Judgment reversed and cause remanded for proceedings consistent with this opinion.