143 Ky. 135 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
This action was instituted in the Knott Circuit Court by plaintiffs for a recovery of a tract of land in the possession of the defendant. Plaintiffs claim to be the owners in fee of said land, subject to the life estate of their father therein. The -defendant denied plaintiffs ’ title and set up ownership in himself by purchase from plaintiffs ’' father. In a reply plaintiffs pleaded that the land in question had been deeded to them by their father in March, 1900, and that in the deed he reserved to himself a life estate therein; that at the time they were all infants, most óf them under fourteen years of age; that in 1903 their father filed suit against them to have the deed set aside, and, in 1904, procured a judgment granting him
Prom that judgment this appeal is prosecuted. It is urged first that the court erred in striking certain paragraphs from the reply. Sec. 98 of the Code provides that
“A reply may contain: 1. A traverse; 2. A statement of facts which constitute an estoppel against, or avoidance of, a set off, counterclaim or defense stated in the answer; 3. A counterclaim against a set-off; 4. A cross-petition.”
As the answer merely put in issue plaintiffs ’ claim of title to and ownership of the land, it is apparent that the statement of facts upon which plaintiffs sought to avoid the effect of the judgment in the suit of their father against them had no plat :e in the reply. The aim and purpose of this pleading was to vacate the old judgment, and, if admissible at all, it should have come in an amended petition. The court did not err in striking all of this matter from the reply.
It is next insisted that the court erred in refusing to permit the amended petition to be filed. This objection cannot be considered for the reason that the amendment is not made a part of the record. The only orders of court in reference to this amendment are the order reciting that the amendment is offered, followed by an order showing that the court refused to permit it to be filed. Before it can be considered it must have been made
With the condition in which these rulings of the trial court left the pleading, the issue was a simple one — were plaintiffs, or was the defendant the owner of the land in question? They each claimed from a common source, to-wit, plaintiffs’ father. Plaintiffs relied upon a deed which had by order and judgment of a court of competent jurisdiction been set aside and cancelled. Defendant’s claim is rested upon a deed which is unassailed. Under this state of facts the Chancellor could not have decided otherwise than as he did.
Judgment affirmed.