| 23 Ky.L.Rptr. 1848 |
|---|
| Court of Appeals of Kentucky. |
| HACKER et al. v. HOOVER et al. |
| Jan. 28, 1902. |
| ACTION: Affirmed. |
Appeal from circuit court, Clay county. "Not to be officially reported." Action by Ella Hoover and others against Jennie Hacker and Joseph Hacker to cancel a deed. Judgment for plaintiffs, and defendants appeal. HOBSON, J. On April 25, 1895, there was an action pending in the Owsley circuit court, in which D. M. Vaughn was plaintiff and Jennie Vaughn defendant, and in which she sought alimony and maintenance for herself and her six children born of the marriage between herself and D. M. Vaughn, as well as a divorce from him. Previous to that time certain personal property had been set apart to her, and on that date the following agreed order was entered in the case: "We, D. M. Vaughn, plaintiff, and Jennie Vaughn, etc., defendants, for value received of D. M. Vaughn, and five hundred dollars in hand paid to Jennie Vaughn, or to E. W. Robertson for the heirs of D. M. Vaughn and Jennie Vaughn's heirs, have this day settled the above-styled case, and said attachment in said case is to be discharged and held for naught. This is to be in addition to the property that has already been adjudged to the defendant Jennie Vaughn, and this is a full and complete settlement of the above-styled case, except the big mare; and said D. M. Vaughn gives the colt to Ella Vaughn, his daughter, and said colt is to be Ella Vaughn's property in this settlement, and not to be taken away from her by any one." On the same day that this judgment was entered E. W. Robertson and wife executed and acknowledged a deed whereby they conveyed to Jennie Vaughn and the six children of herself and her husband jointly a tract of land. The consideration of the deed was the $500 named in the agreed judgment. D. M. Vaughn was present when the deed was drawn, and it was written according to his directions. It was prepared by her father, who was a lawyer, and she was induced by his persuasions to have it so prepared. The deed was delivered by Robertson and wife, and was lodged for record. Some time after this the deed was withdrawn from the clerk's office under a promise to the clerk that it would be returned in a few days. It was not returned, and Jennie Vaughn then got Robertson and wife to execute a new deed conveying the land to her. She had been divorced from her husband. After her divorce she inter-married with her co-appellee, Joseph Hacker. D. M. Vaughn, her former husband, then brought this suit in the name and on behalf of the six infant children, as their next friend, to cancel the second deed made by Robertson, and have the first deed returned to the clerk's office and recorded. After preparation the court decreed the relief sought. The delivery of the deed to Jennie Vaughn and herself for the children devested Robertson of all title to the land, and vested the title in Jennie Vaughn and the infant children. An acceptance of the deed by the infants will be presumed, as it was beneficial to them. The rule is that where the contract between persons, though made at the same time or in the same transaction, is set out in different papers, all of them will be read together in ascertaining their real meaning. Under this rule we do not think that there is any doubt from the agreed order and the deed read together that the title to the land was to be vested jointly in the mother and the six children who were named in the deed. The children are co-tenants with her. The judgment complained of awards them no more than the joint interest in the land which the deed vested in them, and on the whole case this seems to us the only conclusion that the proof in the record warrants. Judgment affirmed. Ky.App. 1902. HACKER et al. v. HOOVER et al. 66 S.W. 382, 23 Ky.L.Rptr. 1848 |
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