Collins v. Gardner

Opinion by Judge Coffer: The attestation clause of the deed of Gardner and wife adds nothing to its force. The recital that she is a party to the conveyance is contradicted by the face of the deed, and it must be .treated as if she merely had signed it without any mention of her name in its body. It purports to be a conveyance by the husband alone, and comes within the rule in Prather v. McDowell and, Wife, 8 Bush 46, and other cases decided by this court. Nor is Mrs. Gardner estopped by any act or omission proved in the record. During the life of her husband she was under disability to assert her rights by suit, and the law which disabled her to sue could not consistently require her to give notice of her claim on pain of losing her right through the operation of an estoppel. The appellant has been allowed the full increased value of the land resulting from the improvements, and being paid for the improvements it was proper he should be required to pay rent since the death of Asa B. Gardner. The judgment was as favorable to the appellant as the law warranted,• and must be affirmed.