142 Ky. 83 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
In the year 1870, William E. Poole and his son-in-law O. H. Peters, bought a lot containing about two acres of land located in North Middletown, Bourbon county. The deed was made to Poole hut they divided the lot between them, Poole taking the end of the lot on which stood a house, and Peters the other end on which he built a house and lived with his family. After they had paid for the property about the year 1885, Poole executed to him a deed for his part of the lot. He failed to have his deed recorded. Poole died in 1888; he left a will by which he devised his real estate to his wife for life and at her death to his three daughters, Eanra Webster, Emma Drake and
The circuit court found as a fact, and we agree with him in the finding, that Winkler at the time he purchased the property knew that Peters was the owner of the lot which he held, and did not believe or understand that the Peters property was included in his purchase; that Peters did not know that his property was proposed to be sold or included in the petition upon which the sale was ordered; that Peters had been misled by the attorney, and that a mistake had been made in giving the boundary of the lot. Not only so, but the judgment under vdfich .Winkler purchased in describing the property which he purchased calls for Peters’ line. Section 518 of the Code, provides:
Section 344 provides that if grounds for a new trial are discovered after the term at which the verdict or decision is rendered, the application may be made in a petition filed with the clerk, not later than the second term after the discovery. And by section 340 of the Code, among the grounds for a new trial are these:
“Accident or surprise which ordinary prudence could not have guarded against.”
When in 1904, the suit was filed for the sale of the Poole land, nobody understood that Peters’ land was to be sold. He had held the land for over thirty years. The purpose of the proceeding was only to sell Poole’s part of the lot; and when Peters went to see the attorney who had brought the suit and the attorney told him he need put in no defense, it can not be said that he was negligent. Where a party has thus been misled, the court has frequently granted a new trial after the term. (Hayden v. Moore, 4 Bush, 107; McCall v. Hitchcock, 9 Bush, 6; Vittitow v. Ames, 21 R., 225; Snelling v. Lewis, 25 R., 1856; Grill v. Fugate, 117 Ky., 257.) A palpable mistake has been made here. To allow the judgment to stand is to give Winkler property he did not buy worth as much as that he did buy. The mistake was due to Peters being misled by the attorney who did not know that the boundary which he put in the petition included Peters’ home as well as Poole’s property. He took the boundary from the old deed, and that simply called for the abutting owners who were all dead or had moved away, so that he was in fact ignorant of what land was included in the calls that he gave; but they had made to another a deed for a part of the land, and in describing this exception which lay between Peters’ land and Poole’s, he followed the deed and called for Peters’ line. So that anybody who read the description as a whole, and knew the property, would see that a mistake had been made.
Judgment affirmed.