Eggner v. Hovekamp

Opinion of the Court by Chief Justice Settle Affirming. Appellant, as a creditor of Betsy Ann Mathis, following her death brought this action against her administrator and children for a settlement of her estate, and to recover $475, the amount of two notes which the decedent executed to him a year or more before, her death. The notes were for a batanee and the larger part of the purchase price of a tract of land in McCracken county, sold and conveyed the decedent- by appellant in 1906, their payment being .•secured by a vendor’s lien on the land expressly retained in the deed. In 1907 appellant, as further security for the payment of the two notes referred to, 'caused the decedent to execute to him a mortgage upon a 65-acre tract of land lying in Marshall county. ‘The mortgage was duly acknowledged and recorded. In the action brought by appellant against the administrator and heirs at law of the decedent he sought to enforce the vendor’s lien on the McCracken county land, and also the mortgage lien on the Marshall county land, and prayed for the sale of both to pay Ms two notes. The appellees (administrator and heirs at law of the decedent) resisted the enforcement of the mortgage lien by a sale of the Marshall county land, and by answer denied the existence of such lien, and alleged that the decedent at the time of the execution of the mortgage and down to the time of her death, only 'had and owned a, life estate in the Mar [227] shall county land, which (terminated at her death, at which time they as remaindermen became the absolute owners, and entitled to the possession of the land. The circuit court adopted that view of the case arid consequently adjudged that appellant’s- mortgage became of no effect at the death of the decedent, and that the children of the latter were the 'owners of the Marshal county land, and from that judgment this appeal is prosecuted. ~VVe must therefore look to the deed by which the Marshall county land was conveyed the decedent to determine the character of her title thereto. The deed was executed to her by W. H. Feesor and wife, Parlee Feesor, the latter being the decedent’s sister. The body of the deed reads as follows: ‘ ‘ Know all men by these presents that we, W. H. Feesor and Parlee, his wife, of Marshall county, Kentucky, for and in consideration of $50.00, in hand paid, does hereby grant, bargain and sell and convey unto Betsy Ann Mathis, her maiden name being Warford, to her land her bodily heirs the following land, viz: Sixty-five acres of the west end of 'the northwest, or of (section 31 township 6, range 3 east, in Marshall bounty, Kentucky, the said Betsey Ann Mathis to have and to hold the same her lifetime, then to her bodily heirs, the said: Feesor and wife covenanting that they,will warrant and de' fend the property hereby conveyed. In witness whereof we have hereunto ’set our hands land -seals this January 8, 1870.” It is contended by appellant that the above deed created an estate tail, such as section 2343, Ky. St, converts into an estate in fee. That section declares that “All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to oe estates in fee simple. * * #” The words “bodily [228] heirs” appearing in the deed are, it is claimed, words of limitation, the use of which shows it was the purpose of the parities to the deed to create an estate-tail in spite of the inhibition of the statute-, supra. We do not concur in this construction of the deed. In our opinion the words “bodily heirs” were used in the sense of “children,” and were therefore intended to be words of purchase, and not of limitation. This construction is supported by the words connected with and immediately preceding, the words “bodily heirs,” viz: “The said Betsy Ann Mathis to have and to hold the same (the land described in the deed) her lifetime, then to her bodily heirs. * * *” There is yet another section of -the Kentucky statutes which removes any doubt that might otherwise exist as to the meaning of the deed under consideration, for it was intended to apply to deeds of its wording. We refer to section 2345, which provides: “If any estate shall be given by deed or will to any person for his life, and after his death to Ids heirs, or the heirs of his body, or his issue or descendants, the same shall be construed to be an estate for life only in such person, and a remainder in fee simple in his heirs or the heirs of his body, or his issue or descendants.” The , following authorities construing and applying section 2345 will be found clearly in point: Brown v. Ferrell, 83 Ky. 417; 7 R. 461; Mefford v. Daugherty, 89 Ky. 58, 11 S. W. 716, 25 Am. St. Rep. 521; 11 R. 157; Jones v. Carlin (Ky.) 96 S. W. 885; 29 R. 1077; Mitchell v. Simpson, 88 Ky. 125, 10 S. W. 372; 10 R. 708; Clubb v. King (Ky.) 99 S. W. 935, 30 R. 830. ■ It is further insisted for appellant that the deed in question should be treated as a deed -of partition, and its attempt to create a life estate in Mrs. Mathis, if it can be so construed,- should be ignored because, [229] it is claimed the whole tract of which it wias a part was owned by Jacob Warford, who was the father of Mrs. Mathis and Mrs. Feesor, and that alt his death it descended to them as his only children and heirs at law. The only grounds for this contention are found in the deposition of Mrs. Feesor and T. H. Harrison. The former testified that her father once lived for a short time on the Marshall county land, but that he was not residing on it when he died, but near a mill he owned in the same neighborhood; and she was-unable to say that he ever owned this land or claimed to do so. Harrison, who is a surveyor, in 1869 or 1870 surveyed the 65 acres of land in Marshall county conveyed Mrs. Mathis by Feesor and testified that he knew Jacob Warford when a boy and then heard some one say he claimed or had lived upon the land. No deed or other writing was produced or claimed io exist which showed that Warford had any title to the land. The testimony referred to was altogether vague and shadowy and wholly insufficient to authorize the conclusion that Warford ever owned, or claimed to own the land. But if it had been shown that he did so, and died the owner of if, and that at his death it descended under the statute to Mrs. Mathis and Mrs. Feesor, those facts would not have prevented Mrs. Mathis from having her interest in the land conveyed her by her sister, and the latter’s husband, in such a manner as to vest in her a life estate therein, with remainder to her children. Mrs. Feesor also testified that the deed was made as Mrs. Mathis requested, and, if so, it cannot be doubted that it was her purpose to take only a life estate, with remainder to her children; and, such being her request, no other person can complain that she took only a life estate in the land. [230] If required to say whether the deed she received from Feesor and wife was one of partition or of bargain and. >s¡ale, we would be compelled to say that if belonged to the latter class. If this were not so, why did the deed recite that it was for a money consideration and Mrs. Mathis had paid $50 for the landf No consideration was necessary to support a deed of partition. It must therefore be presumed ¡that she paid the $50 and certainly it was not denied that she did; besides, as the land, according to the record, was flat marsh land, $50 in 1869 or 1870 was probably as much as it was worth. Having no cause ¡to disagree with- the 'conclusion reached by the circuit court, the judgment is affirmed.