146 Ky. 27 | Ky. Ct. App. | 1911
Opinion of the Court by
Commissioner
Affirming.
On January 15, 1900, Anderson Varney and his> wife signed, acknowledged and delivered to their son Melvin Varney a deed to a small tract of land in Pike county, Kentucky, Melvin Varney delivered the deed to his sister for safe keeping. Shortly thereafter, Melvin Varney, .though he was an infant only twenty years of age, sold the land by oral contract to his- brother, Henry Varney. The consideration was $175.00, for which Henry delivered to Melvin a mule valued at $100.00, two shot guns, some geese and hogs and $25.00 in cash.
Appellant, Melvin Varney, brought this suit against Thomas Deskins and N. J. Phillips for the purpose of canceling the deeds from. Anderson Varney to Thomas Deskins and from' Thomas Deskins to N. J. Phillips. Subsequently, Polly A. Williams and H. G-. Eush were made parties defendants. Appellant bases his right to recover on the fact that the land had been previously conveyed to him, and the further fact that his father, Anderson Varney, at the time of the making of the deed to Deskins, was mentally incapable of entering into such a transaction. All the defendants answered, pleading that they were innocent purchasers for value without notice either of appellant’s deed or of his father’s incompetency. Upon a submission of the case appellant was denied relief, and he prosecutes this appeal to review the propriety of the finding.
At the time appellant filed his suit, he was not in possession of the deed upon which he relied, but it subsequently developed that it was in the possession of N. J. Phillips and her husband, who upon being ruled produced it in court. As this deed was in possession of the Phillips, it is insisted that this was sufficient proof that they purchased the land with notice thereof. Both Mrs. Phillips ’ and her husband, W. T. Phillips, who attended to the transaction for her, swear that the trade was closed without their knowing anything
As to the other appellees, Polly A. Williams and H. Gr. Push, the weight of the evidence is to the effect that they purchased without notice; but even if they had notice the law is well settled that a purchaser with notice from a bona fide purchaser for value without notice will be protected against prior equities. (Am. & Eng. Ency. of Law, Vol. 23, page 477; Moore v. Dodd, 1 A. K. Marshall, 140, and Lindsey v. Rankin, 4 Bibb, 482.) The wisdom of this rule is well illustrated in this case, for at the time Polly A. Williams testified she still owed a balance on the land in question, which was due to' N. J. Phillips, and if it could be subjected by appellant on the ground that Polly A. Williams was not a purchaser for value, the effect would be to deprive N. J. Phillips
As to whether appellant is entitled to a personal judgment against Thomas Deskins, no opinion is expressed as the pleadings are not sufficient to present this question. This is an action to cancel certain deeds and recover, the land. (Arnett’s Com. v. Owens, &c., 23 Ky. Law Rep., 1409).
Judgment affirmed.