28 Ky.L.Rptr. 50
Court of Appeals of Kentucky.
Sep 26, 1905.
ACTION: Reversed.

Appeal from Circuit Court, Bell County.
"Not to be officially reported."
Action by T. J. Asher against Milburn Campbell and others.
From a judgment for plaintiff, defendants appeal.

Prior to September 8, 1857, Mount Pursifull, who owned a considerable quantity of land on the Cumberland river in what was then Harlan county, this state, placed his son, H. C. Pursifull, in possession of a portion of it, under some kind of an arrangement not clearly disclosed by the record, whether it was a gift or a sale. Afterward Mount Pursifull also placed in possession of an adjoining tract his son-in-law, Wilkerson Campbell, and the latter's wife, Martha Campbell. Wilkerson Campbell having bought the tract of H. C. Pursifull, Mount Pursifull on September 8, 1857, made a conveyance of both tracts by the following writing:

"Know all men to these presents shall come greeting that I Mount Pursifull and Mary his wife both of the county of Harlan and state of Kentucky, have this day given and bequeathed unto Wilkerson Campbell and Martha his wife a certain tract or parcel of land supposed to be 500 A., be the same more or less, and lying and being in the Co. and state aforesaid on the waters of Cumberland river and bounded as follows, to wit: Beginning near the head of a branch about a quarter of a mile below said Camp's house, thence down the branch to Cumberland river, thence up the river with the meanders thereof so as to include the island to the lower end of Mount Pursifull field below the mill, thence south to Mount Pursifull's back line, thence with the same to the beginning. The condition of the above obligation is such that the aforesaid Wilkerson Campbell bought a part of this boundary from Henry C. Pursifull for the sum of $350, and the said Henry C. Pursifull paid $100 back to Mount Pursifull and I the said Mount Pursifull do charge the said Campbell $300, to be discounted out of their part of my estate at my death, and I the said Mount Pursifull and Mary my wife do make to the said Wilk Campbell and Martha his wife a good lawful deed to said tract of land and will forever wart and defend the same against all persons claiming or to claim the same unto the said Campbell and Martha his wife their heirs forever. In testimony whereof we have here unto set our hands and affixed our seals this the 8th day of September, 1857.
"[Signed] Mount Pursifull.
"Mary Pursifull."

Martha Campbell had born to her four children, two of whom died in infancy. She died before her husband, Wilkerson Campbell, leaving two children, one of whom, Milburn Campbell, is an appellant herein. Wilkerson Campbell married again, and had issue to the number of eight living children. After his death some of those children conveyed their interest in the land above described to T. J. Asher, who has conveyed his interest to appellant Miracle. This suit was brought by Asher against Milburn Campbell (who bought out the interest of his whole brother James) and two infants, children of Wilkerson Campbell by his last wife (Asher having bought the interest of all the other heirs, and receiving conveyances therefor), for a partition of the land. Asher claimed in the petition that each heir was entitled to an undivided one-tenth of the whole tract. Milburn Campbell contended, on the contrary, that his mother, Martha Campbell, took one moiety of the tract embraced by the deed above set out, and her husband, Wilkerson Campbell, took the other; that he, Milburn Campbell, and his whole brother, inherited the whole of their mother's moiety upon her death, subject to their father's estate as tenant by the curtesy, and that as heirs at law of the father they took an undivided one-tenth each in the latter's moiety of the land.

The court heard extraneous evidence as to how the land was paid for and claimed, but we think this was all beside the issue in the case. Whatever may have been Wilkerson Campbell's intention, or whatever may have been his understanding concerning what he was buying, the fact remains that he accepted a deed and put it to record, which conveyed the land to him and to his wife jointly in fee as tenants in common. After nearly 50 years it is too late to attack this deed for the first time. Nor does it matter that Wilkerson Campbell paid more than half of the consideration. Resulting trusts having been abolished by statute prior to the making of this deed, the grantees took each an undivided one-half interest in the land conveyed by it. The judgment of the circuit court was to the effect that the whole of the land descended to the heirs of Wilkerson Campbell in equal parts, which, as will be seen from the foregoing, was an erroneous conclusion. Milburn Campbell's interest was six- tenths of the whole tract, subject to the right of the infants to occupy the homestead during their minority.

It is complained that the judgment was furthermore erroneous in directing the commissioners to partition the land to allot the dwelling house and curtilage to the infants, without respect to their value. The infant children of Wilkerson Campbell were entitled to occupy his homestead during their minority. Their fee simple interest should have been laid off with respect to this right; that is to say, if the homestead was less than their fee simple interest, the latter should have been made to include the former. On the other hand, if the homestead was of greater value than that fee-simple interest, the latter should have been included in the former.

The judgment of the circuit court is reversed, and cause remanded, with directions to enter a judgment in conformity with this opinion.

Ky.App. 1905.
88 S.W. 1067, 28 Ky.L.Rptr. 50


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