| Ky. Ct. App. | Dec 4, 1914
Opinion op the Court by
— Reversing.
'Stewart Vaughan, a man of color, died in 1907 in Hickman county, where he was domiciled, leaving a will, which was duly admitted to probate by the Hickman
‘ ‘ First. I give and bequeath to my beloved wife, Ada-line Yaughan, lot No. 174 in the city of Columbus, being-the same purchased by me from Ray & Zinnerman, and-upon which I now reside, and I also give to her a part original lot No. 643, being half of acre and being the same purchased by me from Alfred Allen, and lying across the street from my home place, to have and to hold and to dispose of said property as she may deem proper. I also give to her during her natural life lot No. 887, containing 30 acres, and deeded by Thos. Willing-ham to me. i
“Second. I give and bequeath to Monroe Yaughan three-fourths of lots 848 and 849, purchased by me from Gest & Dupree.
“Third. I give and bequeath to Odenna Vaughan the remaining one-fourth of lots No. 848 and 849, devised to Monroe Yaughan above, and I also give and bequeath to said Odena Vaughan one undivided half interest in lot No. 887, heretofore conveyed to my wife during her life.
“Fourth. T give and bequeath to Richard Bryars one-half undivided interest and to lot No. 887 after the life estate of my wife in said lot.
“Fifth. I own three half-acre lots in original lot No. 645, the number subdivision not being known, these three lots I give & bequeath to Birch Clarkson, Burnett Bryars, Bruce Johnson to be equally divided between them.
“Sixth. I give and bequeath to 'John Johnson lots No. 358, 360, 361 and 362, being the same lots purchased by me from the auditor of the state, each and all of the property divided in this will is located in the City of Columbus, Ky.
“Seventh. At my death, I desire my wife to have and I give to her my household and kitchen furniture and the rest of my personal property sold by my executors, and the proceeds of said personalty divided equally between my wife, Adeline Yaughan, Monroe Yaughan and Odena Yaughan.
“Eighth. I hereby appoint my wife Adaline and Monroe Yaughan executors of this my last will and testament. ’ ’
Shortly after the will was admitted to probate, S. T. Vaughan, a son, and Adaline Yaughan, widow of the tes~ tator, for the purpose of contesting it, took an appeal
Pending the appeal in the circuit court, the following paper was signed by S. T. Vaughan, Tobe Vaughan, Monroe Vaughan, and to it also appears the name of John Johnson:
“Article of Agreement^made and entered into at Columbus, Ky., May 19, A. D. 1908, by the following subscribed persons who are heirs and claimant of the late Steward Vaughn estate.
“Whereas, S. T. Vaughn in the year A. D. 1907 brought or cause to be brought a suit or action in the circuit court of Hickman Co., Ky., for the purpose of setting aside or making void the last will and testament of the late Steward Vaughn.
“Now comes the plaintiff in this suit, S. T. Vaughn, and agrees that he (S. T. Vaughn) will dismiss or cause to be dismissed the suit or action from the Docket of said Circuit Court upon the following terms of agreement, to-wit: That the said Monroe Vaughn Deed and transfer to the said S. T. Vaughan (10) ten acres of land out of the (30) thirty acre tract or plot of land willed and bequeathed to the said Monroe Vaughan by the last will and Testament of the late Steward Vaughn. The said ten acres to be laid off on the East side of the said thirty acre tract or plat of land and adjoining the ten acre lot of Odena Vaughan. And the said Monroe Vaughn further agrees to pay to the said S. T. Vaughn One Hundred Dollars twelve months after date.
“It is further agreed that, upon the withdrawal of said suit that Odena Vaughn will Deed to the said S. T. Vaughan (3) three acres of land out of the ten acre plot of land given her by the last Will and Testament of the*404 late Steward Vaughn. The said (3) three acres to he laid off parallel and adjoining the ten acre plot of land given and deeded to the said S. T. Vaughan by the said Monroe Vaughan.
“The said Odena Vaughn further agrees to deed to the said, S. T. Vaughn (2) acres of land out of the fifteen acre plot of land now a part of the Dowery of Addie Vaughn widow of the late Steward Vaughn when it comes into possession.
“It is also agreed by Johnnie Johnson that he will Deed to the said S. T. Vaughn a one-half acre lot lying in Columbus, Ky., which was given to the said Johnie Johnson by the last Will and Testament of the late Steward Vaughn.
“It is further agreed by S. T. Vaughn and Tobe Vaughn representing the absent Vaughn heirs that they guarantee and stand surety against any further claim of - any and all of the Vaughn heirs to any part of the said estate of the late Steward Vaughn.
“It is further agreed by the said S. T. Vaughn and Tobe Vaughn representing Birch Clarkson, Vemett Bryars and Bruce Johnson who received a one half acre lot each under the Will of the late Steward Vaughn that they pay $25 twenty-five Dollars each to S. T. Vaughn.
“It is also agreed by each of the subscribed parties that the cost of this suit so far accrued be paid out of the estate of the late Steward Vaughn.
“Each of these Articles and terms of this Agreement are assented to by each of the parties thereto — to which they have subscribed their names. ’ ’
Following the execution of this writing this' action was brought by the appellee, S. T. Vaughan, against the appellant, Monroe Vaughan, in the Hickman 'Circuit Court, setting up the agreement contained in the writing, alleging appellee’s compliance with its terms, appellant’s breach of same, and asking that he be compelled to specifically perform his part thereof. Appellant’s answer admitted he signed the writing mentioned,but alleged in substance that itwasnever an enforceable instrument because by agreement of those whose signatures appear thereto it was not to be obligatory upon them until signed by all the persons to be affected by it; and that as it was never agreed to or signed by the other persons to be affected by it, it has no legal effect whatever. The answer contains the further allegation that the name of John Johnson, attached to the writing, was not written by him or
The prayer of the petition for specific performance was granted by the judgment of the circuit court to the extent of requiring the appellant, Monroe Vaughan, to execute and deliver on or before December 1,1913, a deed conveying to the appellee, S. T. Vaughan, the ten acres of ground claimed by the latter under the writing in question, and directed that, in the event of appellant’s failure to execute and deliver the deed within the time indicated, it be done by the court’s commissioner. The judgment, however, did not require appellant to pay to appellee the $100.00 claimed by the latter under the alleged written agreement, but required him to pay the costs of the action. Appellant’s dissatisfaction with the judgment thus rendered resulted in this appeal.
Our examination of the evidence found in the record convinces us that the defense interposed by appellant’s answer is satisfactorily established. The paper containing the alleged agreement relied on by appellee was written by a colored school teacher several days after the agreement was made, and was left with the draughtsman for the signatures of all the parties to be affected by it. This is shown by the deposition of appellant, and also that of James Clinton, Clinton being present at a conversation occurring between appellant and appellee in which the latter admitted that the agreement was not to become effective until it was signed by all the parties in interest. John Johnson testified that his name to the writing was not signed by him nor was it written by any other person with his authority. It is patent, therefore, that the writing was never signed by John Johnson, Odena Vaughan, Birch Clarkson, Burnett Bryars or Bruce Johnson, five of the devisees named in the testator’s will, and therefore parties to be affected by the written agreement. The school teacher who prepared the written agreement, and with whom it was left to be signed by the other parties in interest, died before the institution of this action, consequently his deposition could not be taken; and whether the writing was surrendered by him to appellee before his death, or was in some manner obtained by the latter afterwards, does not appear from
In view of the evidence, it is manifest that the signing of the writing sued on by John Johnson, Odena Vaughan, Birch Clarkson, Burnett Biryars and Bruce Johnson, the remaining parties in interest, was a condition precedent to its becoming legally effective; and as this condition was never complied with, the writing’ was never more than an unexecuted, unenforceable instrument. It is not material, therefore, whether it was delivered by the draughtsman and holder to appellee or in what manner he received it; its possession by him raised no presumption in favor of its validity, as it shows on its face that the condition upon which it was to become effective had. not been complied with. In legal contemplation the instrument was never more than a mere escrow, as it was delivered to the draughtsman to hold until signed by all the persons to be affected by it and was not to become binding upon those who had signed it before its delivery to him, until signed by the persons for whose 'signatures the draughtsman held it. It was never signed by the latter, consequently it had no obligatory force as to1 those who1 had signed it. The term “escrow” was originally applied to instruments for the conveyance of land, but an escrow as now interpreted is a writing. delivered to a third party to hold until the happening of some event, as until it is signed by another party, the consideration paid, or a suit be dismissed; and until the event happens' or the condition be performed, it can have no effect. 16 Cyc, 563; Mudd, etc., v. Green, 11 R., 350; Millett v. Parker, 2 Metcalf, 608; Arnold v. Cov. & Cin. Bridge Co., 1 Duv., 672.
In addition to the evidence showing that such was its character, it is indicated by the following language of the writing itself: “Each of these articles and terms of this agreement are assented to by the parties hereto, to which they have subscribed their names.” As there were persons other than the signers named in the writing as parties in interest, in the meaning of the above language
In our opinion, appellee failed to show himself entitled to the relief granted him hy the judgment of the circuit court, for which reason the judgment is reversed and the cause remanded with instructions to that court to dismiss the action.