Sebree v. Crutchfield's Admr., et al.

(Decided January 31, 1912.)

Appeal from Scott Circuit Court.

Contracts of a Person of Unsound Mind.-Where a person of unsound mind gave her note and executed a mortgage to secure the same, she was liable upon said note to the extent that the proceeds thereof were used for her benefit, or the benefit of her estate.

J. C. B. SEBREE for appellant.

BRADLEY & BRADLEY and B. M. LEE for appellees.

OPINION OF THE COURT BY JUDGE MILLER-Reversing.

Appellant, J. C. B. Sebree, instituted this action. against the administrator and devisees of Elizabeth Tomlinson to recover $800, represented by her two notes, one for $700 and the other for $100, given in 1908 to John W. Hall, and assigned by him to appellant. The note for $700 was secured by a mortgage; and although the other note is called a mortgage note, it was given some two months after the mortgage had been given.

The defense is that Elizabeth Tomlinson, who was then about 85 years of age, and had been bed-ridden for many years, did not have sufficient mental capacity to know what she was doing when she signed the notes and mortgage.

In 1907, appellant as attorney for Elizabeth Tomlinson, had instituted a suit against E. H. Wise for the purpose of having her deed to Wise for her farm construed to be a mortgage, upon the ground that she had been overreached owing to her extreme age and weakness of mind and body. The suit with Wise was compromised for $285; and to raise that sum, and $100 attorney's fee for appellant, and as claimed by appellant, to raise some additional money to improve the house and stock the farm, the notes for $800 were given to Hall, and by him assigned to appellant, who loaned the money.

The chancellor found that Elizabeth Tomlinson was incompetent when she made the notes and mortgage, and that Hall and appellant knew that fact; that only the $285 paid to Wise and the $100 attorney's fee was paid out for Elizabeth Tomlinson's benefit, and he, therefore, gave appellant judgment and a lien for the $285

paid to Wise, and $100 attorney's fees in the Wise case. Appellant appeals, complaining that he should have had judgment for the entire $800.

The only issue was this: Did Elizabeth Tomlinson have sufficient mental capacity at the time she executed the notes and mortgage to know what she was doing?

In support of the negative side of the proposition, appellees produced five witnesses, A. G. Sebree, B. F. Baldwin, Theodore Devers, the County Assessor, T. S. Tomlinson and Dr. P. H. Crutchfield, the family physician; while the plaintiff supported his side of the issue by three witnesses, John W. Hall, E. H. Wise and Dr. R. B. Gwinn.

In view of the fact that Mrs. Tomlinson was about 85 years of age; was so infirm or uneducated that she executed the notes by making her mark; that appellant, as her attorney, had sworn to her petition in the suit against Wise in 1907 that she was then, in fact, non compos mentis, and the weight of the testimony which is decidedly with appellees, we do not hesitate to approve the conclusion reached by the chancellor as to the state of Mrs. Tomlinson's mind. Her estate is liable, however, to the extent it received the benefit of the proceeds of the notes. Appellant is not an innocent holder of the notes, since he was the real lender of the money. Hall was a man without property, and it is perfectly apparent that his name as maker of the notes was used merely for appellant's convenience. Under this state of facts Mrs. Tomlinson was liable, in no state of case, for any more of the money than was used for her benefit; beyond that amount the notes were without consideration.

We think, however, it is clear from the evidence, that in addition to the $285 paid to Wise, and the $100 fee, Mrs. Tomlinson's estate should be charged with $100 which A. G. Sebree admits he received out of the proceeds of her $100 note, in the shape of $25 in cash, and a cow and three hogs. A. G. Sebree lived with Mrs. Tomlinson upon her farm, conducted it for her, was her man of business in that respect, and the devisee of the farm under her will. And, although he says he received the proceeds of the smaller note, we understand him to mean that he received that sum from Mrs. Tomlinson, and he undoubtedly used it for her benefit. Hall says that all of the balance after paying Wise and the attorney's fee, was used in betterments for the farm, but he produces

no receipts therefor, and the chancellor properly rejected that portion of the claim.

The judgment of the chancellor is, therefore, reversed, with instructions to award plaintiff a judgment and lien for $385, with interest from March 19, 1908, and a judgment for the further sum of $100, with interest from May 8, 1908.

Virginia Iron, Coal & Coke Company v. Dye, et al.

1.

2.

(Decided January 31, 1912.)

Appeal from Pike Circuit Court.

Deeds-Construction of.-In construing a deed the intention of the parties, as appears from the whole deed, must control; and, if the intention appears, technical rules of construction will not be applied if they lead to a different result. If the granting clause and the habendum clause are irreconcilable, and the other parts of the deed do not make it apparent which the grantor intended should control, the granting clause will prevail; but, if both parts of a deed may well stand together, consistent with the rules of law, they will be construed to have that effect, rather than be held repugnant.

Deeds-Construction of "Children" Used for "Heirs."-Where it is apparent from the instrument that the word "heirs" is used in the sense of "children," as where they are used interchangeably, the term "heirs" will be read as meaning "children," and construed as a word of purchase and not of limitation.

3. Same. In this case, where the deed named "Elizabeth Dye and her children" as "party of the second part," and the granting clause conveyed "to the party of the second part, her heirs and assigns," and the habendum clause was "to the party of the second part, her heirs and assigns forever," Elizabeth Dye took a life estate with remainder to her children.

AUXIER, HARMAN & FRANCIS for appellant.

C. C. BOWLES and J. S. CLINE for appellee.

OPINION OF THE COURT BY JUDGE MILLER-Affirming. This appeal involves the construction of the following deed:

"This deed of conveyance, made and entered into this 31st day of May, 1878, between William Sword, Sr., and Malinda Sword, his wife, party of the first part, and Elizabeth Dye and her children, party of the second part

witnesseth: That said party of the first part, for and in consideration of a swap in land do hereby sell and convey to the party of the second part, her heirs and assigns the following described property, to-wit:

(Description of land omitted.)

"To have and to hold the same together with all the appurtenances thereunto belonging unto the party of the second part, her heirs and assigns forever. And the said party of the first part hereby covenants with the said party of the second part that they will warrant the title to the property hereby conveyed to the party of the second part and his heirs and assigns forever.

"In testimony whereof, the party of the first part have hereunto subscribed our names the day and year aforesaid."

Elizabeth Dye was the daughter of William Sword, Sr., and the wife of Lilburn Dye, by whom she had sixteen living children. The land "swapped" as the consideration for said conveyance belonged to Lilburn Dye, the husband. In 1887, and after the death of Lilburn Dye, Elizabeth Dye sold and conveyed all of the coal, salt water, oil, gas and mineral upon and under said land, with all the usual mining privileges to Greenway and his associates, reserving, however, the fee simple in the surface, and the right to mine coal for household use. The appellant, the Virginia Iron, Coal & Coke Company, as the successor in title from Greenway and his associates, filed this action on December 6, 1909, against Elizabeth Dye (now Elizabeth Marrs), and certain of her children and grandchildren, for the purpose of quieting the title to said mining privileges, alleging that said defendants were illegally and wrongfully claiming that Elizabeth Dye took only a life estate under the deed from William Sword, Sr., in 1878, and that her children and the descendants of those who had died own the remainder estate therein.

The circuit judge, resting his decision upon the authority of Bowe v. Richmond, 33 Ky. Law Rep., 173, 109 S. W., 359, dismissed the petition, and from that judgment the plaintiff prosecutes this appeal.

If Elizabeth Dye took a fee simple estate under the deed from William Sword, Sr., her conveyance to Greenway and his associates passed the entire estate in the mining privileges, and the appellees, who are children and grandchildren of Elizabeth Dye, have no interest whatever therein; but, if Elizabeth Dye took only a

life estate under said deed, her children and grandchildren own the remainder, and the judgment dismissing the petition was right.

In Kelly v. Parsons, 127 S. W., 792, this court, in announcing a well recognized canon for the construction of deeds, said:

"In construing a deed, this court is committed to the doctrine that the intention of the parties, as appears from the whole deed, must control. If the intention appears, technical rules of construction can not be applied if they lead to a different result. If the granting clause and the habendum are irreconcilable, and the other parts of the deed do not make it apparent which the grantor intended should control, the granting clause will prevail. Hall v. Wright, 121 Ky., 16, 87 S. W., 1129, 27 Ky. Law Rep., 1185. But if both parts of a deed may well stand together, consistent with the rules of law, they will be construed to have that effect, rather than be held repugnant. 13 Cyc., 618. So, too, where it is apparent from the instrument that the word 'children' is used in the sense of 'heirs,' as where they are used interchangeably, the term 'children' will be read as meaning 'heirs' and construed as a word of limitation and not of purchase. McFarland v. Hatchett, 118 Ky., 423, 80 S. W., 1185, 26 Ky. Law Rep., 276; Moran v. Dillehay, 8 Bush, 434; Hood v. Dawson, 98 Ky., 285, 33 S. W., 75, 17 Ky. Law Rep., 880; Lachland's Heirs v. Downing's Exors., 11 B. M., 32; Williams v. Duncan, 92 Ky., 125, 17 S. W., 330, 13 Ky. Law Rep., 389."

Again in Tanner v. Ellis, 127 S. W., 996, in referring to the use of words, and the construction to be given them when used in their popular sense rather than in their strict legal meaning, this court said:

"The object of all rules of construction is to arrive at the intention of the parties; and, when upon a consideration of the whole instrument, the intention of the parties in the light of their surrounding circumstances sufficiently appears, it will be carried out. The court must look to the whole instrument to ascertain the intention of the parties rather than to a particular word, for it is well known that persons frequently use words in their popular sense rather than in their strict legal meaning; and, if there is enough in the paper to show what the parties in fact meant, their actual intention will be enforced. See Hall v. Wright, 121 Ky., 16, 87 S. W., 1129, 27 Ky. Law Rep., 1185; Bowe v. Richmond,