192 Ky. 304 | Ky. Ct. App. | 1921
Opinion op the Court by
— Reversing.
This case, is another of the -Long list of examples demonstrating the weakness, frailties and shortcomings of human nature and it reveals a story both sad and pathetic. Plaintiff and appellant, Mary P. Shelby, and defendant and appellee, Florence M. Shelby, are maiden sisters, the one being about 58 years of age and the other
At the time of the death of testatrix she had thirteen children, six of whom were unmarried daughters, and they jointly occupied the old Shelby home “Arcadia” under the provisions of the will of their mother until the 14th day of January, 1898, when the children, except Susan S. Mason, who were all adults, executed what is referred to in the record as a “settlement deed,” in which deed the married children of testatrix, who under the term© of her will were not given the right to occupy “Arcadia” were designated as “grantors” and the six unmarried daughters, who were at that time jointly occupying the property, were styled “grantees,” but the instrument was executed and acknowledged by all of the grantors and all the grantees. By its terms the grantees were extended the right to occupy the premises during their respective lives, or until they married, and when the last one manned or died in spinsterhood, the property should be sold and the proceeds divided among the heirs as therein specified. It was stipulated that when any of' the grantees married the others should execute their joint note to her for the sum of $2,000.00, which was to be a lien upon the land but was not to be enforced until the last daughter died or married, and when any of the grantees married ©he should no longer have the right to occupy the premises but that her right should thereby cease and in the language of the deed “pass and belong to the other grantees then remaining alive and unmarried.”
The unmarried daughters, after the execution of the «settlement deed, jointly occupied the premises as therein provided for until some time in 1917, when there were only three of them unmarried, the plaintiff, the defendant and Miss R. Tevis Shelby, at which time the latter died, leaving only plaintiff and defendant possessing the right of occupancy under the terms of the deed. It seems that for some time prior to the death of Miss Tevis Shelby there grew up an estrangement and some bitter feeling between plaintiff and defendant, who seem to possess dispositions more or less antagonistic. There is no doubt but that for some time prior to her death Miss Tevis Shelby was the tie that held together the more or less warring sisters. Her death removed the only soothing influence which made the joint occupancy of the premises by plaintiff and defendant even tolerable, and after that time the breach widened between them until it culminated in unfortunate personal encounters, and it is shown by the record that because of their different natures and temperaments, and because of their diverging views as to the superintendency and management ,of the jointly ■occupied property it is impossible to continue such occupancy with any degree' of peace or comfort to either of them, to say nothing of their personal safety. Under these circumstances plaintiff temporarily abandoned the premises from about the first of the year 1918 until the first of July following, when she returned, and on August 8, 1918, she filed this action in the Lincoln circuit
Manifestly the court was clearly in error in rendering that judgment. Its rendition is sought to be upheld by learned counsel for defendant upon the ground, as he claims, that it was an agreed judgment, but this is so far from being true that we do not deem it necessary to spend time and space in its discussion. It might be true that the physical separation of the properties made in the judgment followed the general lines indicated in plaintiff’s submitted' compromise agreement, but the terms and conditions upon which the defendant should occupy the portion allotted to her, as well as the terms and conditions upon which their mutual agent should rent out the remainder of the property, were wholly unobserved in the judgment, and the provision for the set
But there is another equally if not more fundamental error in the judgment, which is, that under the facts disclosed by the record, plaintiff was entitled to have commissioners appointed and to have the property divided so that each occupant might manage and control her separate portion independently of- any interference by the other. In making this statement it necessarily determines the insufficiency of the defenses interposed.
There was a time in the history of the law when the right to enforce a partition of jointly owned and possessed property was confined to “a division of lands-by parceners or -coheirs which had descended to them by common law or by custom. ’ ’ 38 Cyc. 152. But the law in respect to the right of partition has undergone a radical change, not only as to the character of title under which the property was held, but likewise'as to the character of property which might be divided, and it is now the laiw in this jurisdiction that all kinds of jointly owned property may be partitioned in kind, regardless of the nature of the joint title, provided it maybe done without detriment to any of the joint owners or of their interests in the estate; and even then the property may be sold and the proceeds- divided according to the interests of the respective owners, unless the property is such that to divide it in kind or to sell -it would violate -some public policy, or offend the public sense of decency or propriety. In .substantiation of the above we refer to the case of Kean v. Tilford, 81 Ky. 600, and to section 2348 o'f the Kentucky Statutes, which says: “Joint tenants may be compelled to make partition; and when a joint tenant dies, his part of the joint estate, real or personal, shall descend to his heirs, or pass by devise, or go to his personal representative, subject to debts, -curtesy, dower or distribution.” So strongly has the right of one joint owner to a partition of the jointly owned property become entrenched in the law that the right has become a favored one- with, the courts and they are reluctant to deny it and will not do so, unless there- is some impelling necessity therefor. Illustrating such judicial attitude toward the subject we take this- excerpt from 20 R. C. L. 716:
An examination of the terms of the will (assuming their relevancy here) as well as the terms of the settlement deed convinces us that neither of them, nor the two combined, are sufficient to show any contractual or other binding provision denying the right of partition to any of those having the right to occupy the farm known as “Arcadia” or the mansion thereon, which is the only property involved in the suit. The central idea of both the will and the settlement deed is to make provision for a home for each of the beneficiaries and to give to eabh of them the right to live and to dwell upon the premises or some portion thereof and “without preference to equality or provision” and “without neglecting the welfare and comfort of any of them.” There is nothing found in either of the muniments of title confining the occupancy therein provided for to solely and exclusively a joint one, and the terms and provisions thereof may be as effectually executed and carried out by a separate occupancy (provided the property may be separated into
But it is insisted that the proof is sufficient to show that it was a part of the agreement between the parties to the settlement deed that only a joint right of occupancy was transferred to the grantees therein and that neither of them should ever have the right to enforce a partition of the premises, and that the proof is also sufficient to show th$.t such portion of the agreement was omitted from the deed through oversight and mistake. Assuming that the plea of limitations to the right to reform that deed is not available (but upon which we do not express an opinion) we are unable to take the view of the testimony contended for by counsel for defendant. As was naturally to be supposed some of the Shelby children sided with plaintiff, while others aligned themselves with the defendant. The latter and some of her (witnesses said that they 'understood at the time the settlement deed was made that no partition should ever be made of the premises-, but only a few of them go to the extent ^f saying that such was a part of the agreement. Plaintiff and her witnesses testified that no such subject was ever mentioned, much less was it agreed to as a part of the contract. Their testimony strikes us as being the more natural, because at the time of the execution of that deed the unfortunate storm which proved the destruction of amicable occupancy was not in the minds of the parties and perhaps was not dreamed of, much less anticipated. It is a fundamental rule, often applied by this court, that written contracts will not be reformed, because of fraud or mistake, in the absence of clear and convincing proof of the existence of the alleged grounds therefor. We do not think the testimony in this case measures up to that standard and no reformation of the contract should.be decreed.
But, it is further insisted that the parties themselves by their contemporaneous acts and conduct construed the settlement deed as providing for only joint occupancy
N'either are we impressed with the contention that plaintiff’s temporary absence from the premises, especially under the circumstances, deprived lier of the remedy of partition. Very analagous facts are found in the case of Holt’s Executor v. Deshon, 126 Ky. 310. This court in that opinion not only upheld the right of one of the joint beneficiaries to partition the premises, but further said that their temporary absence therefrom would not forfeit their interest therein, since the will under which they held (containing language very similar to that found here) only required that they make the premises their residence, “but they may be absent from the place for business or pleasure temporarily, provided they do not take up a permanent residence elsewhere.” Plaintiff, under the facts proven in this case, never took up a permanent residence elsewhere so as to forfeit her interest in the premises.
Having arrived at these conclusions, it necessarily follows that the court erred in denying plaintiff the relief sought, and the judgment is reversed with directions to set it aside, and if the parties cannot agree upon a division of the premises without it, the court will appoint commissioners for that purpose and proceed to partition