157 Ky. 756 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
On January 15, 1910, appellee, Jane Harris, as next fiiend of her infant son, Lloyd Skidmore, a lunatic, brought this action against appellant, John Skidmore, and Peggy Blanton, to recover a certain tract of land located in Harlan County, Kentucky. The petition alleges in substance that Jane Harris was married to Everett Skidmore. Two children were born to them, Nancy Skidmore and Lloyd Skidmore. Several years prior to his death Everett Skidmore purchased from Peggy Blanton the land described in the petition. About seven years after the conveyance was executed, Everett Skidmore died intestate. John Skidmore was appointed and qualified as his administrator. The conveyance from Peggy Blanton to Everett Skidmore came into the possession of John Skidmore. This conveyance was never recorded. Subsequently John Skidmore fraudulently procured from Peggy Blanton a conveyance of the land without paying any consideration therefor. After the death of Everett Skidmore Nancy Skidmore, one of the children
On final hearing the chancellor gave judgment ini favor of appellee. John Skidmore appeals.
John Napier and Green Napier, his son, both testified that they occupied the land in controversy four or five years as tenants of. Everett Skidmore, and that John Skidmore knew this fact. They afterwards occupied the land while John Skidmore claimed it and paid rent to him. For a while they rented the land from John Skid-more as administrator of Everett Skidmore, but later on John said he thought he ought to have the land for keeping the children. He then rented it as his own. At that time John never claimed that he bought the land from Charles and Peggy Blanton, but claimed that he should have the land for taking care of the children.
John Skidmore testified that he purchased the land from Peggy Blanton, and paid her $300 for it. He never saw any deed or other writing to Ms brother Everett for the land, and did not tell Jane Harris that he ever had or saw such writing. He never paid to her any rent on the land, but paid her some hogs and money representing personal property left by Everett Skidmore. He was informed that Everett Skidmore did not have any writing for the land, and had not paid for it. For several years he and his mother took charge of Nancy and Lloyd SMdmore, and cared for' them. On cross-examination
It was shown by the deposition of the deputy county clerk that Peggy Blanton purchased the land in question on April 16, 1884. It was further shown that plaintiff, Jane Skidmore, filed suit for divorce against Everett Skidmore January 24, 1887. Judgment of divorce was granted April 11,1887.
Various exceptions to the testimony of Jane Harris and Daniel Blanton were filed, but they do not appear to have been acted upon by the chancellor.
It is first insisted that the chancellor erred in sustaining a demurrer to the plea in abatement to the original action based on the fact that it wa,s brought by plaintiff as next friend of Lloyd Skidmore, a lunatic, when it should have been brought"by the latter’s committee. In this connection it is insisted that the action, having been wrongfully brought, could not be properly revived. It appears, however, that Lloyd Skidmore subsequently died, and plaintiff was permitted to file an amended petition setting up the ownership of the property in question. The effect, therefore, is the same as if she had brought an original action to recover the property. Under the circumstances, the action of the trial court in
Appellant filed exceptions to certain parts of the depositions of Daniel Blanton and appellee, wherein they testified to acts done and conversations had with persons who were dead at the time their testimony was given. The exceptions, however, were not acted upon by the trial court. Under these circumstances, they are deemed waived, and furnish no ground for reversal. Corn v. Sims, 3 Metc., 390; Hon v. Harned, 18 Ky. L. R., 864, 38 S. W., 688; Patterson v. Hansel, 4 Bush, 654; Lewis v. Wright, 3 Bush, 311. However, this court, in such a case, will consider only such evidence as is competent for the purpose of passing on the propriety of the judgment below. On the question of the purchase by Everett Skidmore we have the following facts: Appellee saw a- title bond purporting to have been executed by Charles and Peggy Blanton. Peggy Blanton was the owner of the land at the time. For four or five years prior to his death Everett Skidmore rented the land to others. Appellant knew that these tenants were occupying the land as tenants of Everett Skidmore. Appellee says that defendant told her he had the writing for the land. He admits that after Everett Skidmore’s death he held the land several years as administrator. He further admits that during that time Peggy Blanton, from whom he subsequently purchased the land, did not claim the land. He justifies his purchase on the ground that some one told him that Everett Skidmore had no paper title. He stated to several people that he ought to have the land for taking care of the children. Disregarding, therefore, all the incompetent evidence in the case, we conclude that as Peggy Blanton had the legal title to the land, and after disposing of it in some way to Everett Blanton she never thereafter laid claim to the land, this fact, considered in connection with the fact that appellee saw a writing purporting to be signed by Peggy Blanton and Charles Blanton covering the land in question, that defendant admitted having such writing, that he knew that Everett Skidmore claimed the land and had been renting it for several years to persons who had occupied it as his tenants, and that appellant admitted that he held the land five or six years as his brother’s administrator, and he acquired title to it simply because he had been informed that his brother had no paper title, is sufficient to sustain the charge that there had been some kind of a
But it is insisted that the evidence of Jane Harris to the effect that she and Everett Skidmore were married was incompetent, because Everett Skidmore was dead at the time the evidence was given, and that, therefore, there is no competent proof of the marriage or of the legitimacy of Nancy and Lloyd Skidmore. Passing the question of the competency of the evidence of appellee on this question, we conclude that the other evidence on this question is sufficient. The evidence leaves no doubt that appellee and Everett Skidmore lived together as husband and wife, and enjoyed the reputation of being married. The two children were recognized not only by others but by appellant, John Skidmore, as being the children of Everett. John Skidmore admits that as administrator he turned over to appellee certain property for the children. Not only that, but he took the two children and maintained them for several months. Furthermore, appellant claimed that he was entitled to "the land for taking care of the children. In addition to these facts the record of the divorce of appellee from Everett Skidmore was introduced by appellant himself. These circumstances are sufficient to create the presumption of marriage, and, in the absence of evidence to the contrary, to establish the legitimacy of Nancy and Lloyd Skidmore. Taylor & Tisdale v. Shemwell, 4 B. Mon., 575; Strode, &c. v. Magowan’s Heirs, 2 Bush, 621; Dannelli, &c. v. Dannelli, 4 Bush, 51; Klenke v. Noonan, &c., 26 Ky. L. R., 305.
Further complaint is made of the fact that although the judgment directed appellant, and in case of default on his part, the commissioner, to convey the land to appellee, no opportunity was given to appellant to make the deed, but the commissioner immediately produced! and acknowledged the deed to appellee. While the proper practice in such cases is to provide that in the event the party against whom the judgment is rendered fails to make the deed within a specified time, the commissioner shall make the deed, yet the fact that a deed was made immediately by the commissioner, without giving appellant an opportunity to make it, affords no ground for reversal.
Judgment affirmed.