DAISY REALTY Co. v. BROWN.

(Filed May 9, 1896-Not to be reported.)

1. Breach of covenant—Dedication of street-Pleading-In this action to re cover damages for breach of a covenant in a deed that the grantor "is lawfully seized in fee simple of the property conveyed," that he "has good right and full power to convey," and that the "property is free from all incumbrances," it being alleged in the petition that a part of the parcel of ground conveyed had been dedicated as a street by the recording of a plat, designating it as such, a denial in the answer of knowledge or information sufficient to form a belief as to the making of the plat and the recording of the same is not good, as the plat being a matter of public record is presumptively within defendant's knowledge; and there being no sufficient denial of the acts constituting a dedication, a denial that there was a dedication is but a conclusion of the pleader, and, therefore, not good.

2. Pleading-A pleading is to be construed most strongly against the pleader, therefore, when there is an allegation of want of knowledge or information sufficient to form a belief as to certain facts, followed by a denial of those facts, it must be concluded that the denial was based upon the alleged want of knowledge or information, and if the facts are such that they are presumed to be within the knowledge of the pleader the denial is not good.

3. Dedication of street- It is immaterial in this case whether or not the city accepted the dedication of the street, for as the defendant's grantor and others who joined in making and recording the plat made conveyances to various persons based upon the plat, those grantees acquired an interest in the streets, and they could not, therefore, be appropriated to private uses. Therefore, the defendant's covenant of seisin was broken.

O'Neal & Pryor for appellant.

N. G. Rogers for appellee.

Appeal from Jefferson Circuit Court, Chancery division.

Opinion of the court by Judge Paynter.

In a deed from the Daisy Realty Co. to Brown, purporting to convey a certain parcel of ground in Louisville, in addition to a covenant of general warranty, there appears the following language, to wit: "And the said first party further covenants with the said second party, his heirs and assigns, that it is lawfully seized, in fee simple, of the property herein conveyed; that it has good right and full power to convey the same; that the said property is free from all incumbrances."

This action is to recover damages for the alleged breach of the covenants of warranty in the deed in this, that the ground which the deed attempts to convey is part of Twenty-first street in the city of Louisville, and was so at the time this deed was made.

The petition alleges that B. H. Bristow owned 8 acres, of which the ground described in the deed is a part; that others owned land adjoining; that in 1875 some of them, together with Bristow, caused to be prepared a plat dividing the land off into lots, by streets and alleys, and in proper numbers; that the plat was signed by the parties, acknowledged and recorded; that Twenty-first street, from Dumesnil south, was laid out as a public street; that it was dedicated to public uses; that the ground which was attempted to be conveyed to Brown was the eastern half of Twenty-first street, from Dumesnil street south, to a depth as named in the deed.

An attested copy of the plat is made part of the petition.

Appellant attempts to traverse the allegations of the petition as to the platting of the land and a record of same and as to the allegation that Bristow was its grantor, by saying it has no knowledge or information sufficient to form a belief, etc. This is no traverse of these allegations of the petition. The plat is a matter of public record and presumptively within its knowledge. (Barrett v. Godshaw, 12 Bush, 598.) Certainly it was presumed to know whether or not Bristow was its immediate or remote grantor.

While the answer follows these allegations of want of information or knowledge, etc., with denials that the street was dedicated to public uses or that the city of Louisville ever accepted the dedication or became entitled to the use thereof, these denials are insufficient to traverse the allegations of the petition, because we must conclude that, as the defendant disclaimed information or knowledge of the facts, the denials were therefore made. As the pleadings must be strongly construed against the pleader it is proper to so interpret the pleading as we have in this case. Besides, where there was no traverse of the facts which, if true, showed a dedication of the street, a mere denial that there was a dedication of it to public uses would be insufficient to make the issue as to whether the ground was dedicated to public uses. It would be a conclusion of the pleader.

It is alleged in the petition, and not denied, that Bristow and the others, who joined in making and recording the plat, made conveyances to various persons of lots based upon the plats, and relying on Twenty-first street, from Dumesnil street south, as being a public

street.

We accept this as being true, as it is not denied. The parties to whom such conveyances were made have an interest in the street, and Bristow and his vendees are estopped from denying that it was dedicated to public use. Bristow could not, after such conveyances, nor his vendees, appropriate the street to private uses; therefore it would be immaterial whether or not the city accepted the dedication. The instant the deed was made there was a breach of the covenants of warranty contained in the deed, and the plaintiff was entitled to maintain the action.

There was a warranty that the grantor was "seized in fee simple" of the property; that it had "good right and full power to convey the same," and that it is "free from all incumbrances." (Mercantile Trust Co. v. South Park Resident Co., 94 Ky., 271.)

The judgment is affirmed.

WELL, &C. V. DEPOSIT BANK OF EMINENCE.
(Filed May 9, 1896-Not to be reported.)

Fraudulent conveyances-Where a father collected and retained money belonging to his children, who were adults, under an agreement with them to convey to each of them a town lot, conveyances subsequently executed pursuant to that agreement are neither actually nor constructively fraudulent as to creditors. In the absence of any evidence as to the value of the lots, the court can not assume that the price was an inadequate one.

L. C. Willis and J. C. Beckham for appellants.

G. G. Gilbert for appellee.

Appeal from Shelby Circuit Court.

Opinion of the court by Judge Hazelrigg.

In this action to settle the estate of W. T. Hardin, deceased, the Deposit Bank of Eminence obtained a judgment against the administrators, and an execution thereon to be levied of assets, which was returned in substance "no property found." They thereupon filed additional pleadings seeking to set aside conveyances made by Hardin to his children, of certain lots of ground in Parkland, Jefferson county, upon the ground that the grantor was insolvent in 1887 when the grants were made, and the conveyances were wholly voluntary, and, therefore, void as to the bank's debt, which was then subsisting.

The action was abandoned as to all save the appellants, Caldwell & Lewis, sons-in-law of the grantor.

Upon final hearing the court adjudged a sale of the property to satisfy the debts of the bank, but adjudged the grantees the sum of $200 each of the purchase money upon the ground that they had in fact paid that much to the grantor for the lots in question.

It appears indisputably that in 1887 W. T. Hardin, then supposed to be solvent by his business associates, including the appellee, collected and retained the sum of about $1,500 which belonged to his children, and did so upon an agreement between him and his children, who were adults, to convey to each of them a lot in the town in question. In pursuance of that agreement he conveyed to the appellants the lots now sought to be sold for the bank's debt.

There is no proof whatever of the value of the lots at the time of their conveyance, and we can not assume even that the price was an inadequate one.

It is entirely manifest from the record that the conveyancas were neither voluntary nor fraudulent either in fact or constructively. The judgment is reversed, with directions to dismiss the appellee's "supplemental counterclaim and cross petition" against the appellants, and for proceedings consistent with this opinion.

FRISTOE, &C. V. LAYTHAM, &C.

(Filed May 12, 1896-Not to be reported.)

1. Vendor and vendee-Defective title-Fraud-Where actual fraud on the part of the vendor is shown the vendee is entitled to relief on account of a defect in the title, although he is in the undisturbed possession of the land under a conveyance with covenants of general warranty.

2. Construction of clause of will — Life estate with power of disposition--A devise of land by a father to his children for life, with power to dispose of same by will, there being no devise over in the event of their failure to exercise the power, vests in each one the fee simple title to his part of the land, and, although the alienation of the land is expressly forbidden, a sale and conveyance by one of the children passes a good title to his share, the restriction upon alienation being void.

G. R. Gill and E. L. Worthington for appellants.

T. C. Campbell for appellees.

Appeal from Mason Circuit Court.

Opinion of the court by Judge Guffy.

This action was instituted in the Mason Circuit Court by Frank Laytham, &c., against the appellant, Silas F. Fristoe, to recover judgment on a note executed for balance due on purchase money for a tract of land sold and conveyed by said Laytham and wife to said Fristoe, and also seeking to enforce a lien on the land given to secure the payment of the purchase money.

The appellants resisted the recovery, and sought a rescission of the contract upon the ground that the appellee did not have a good and sufficient title to the land so sold and conveyed to Fristoe.

The court below sustained a demurrer to the answer, and, appellant failing to amend, judgment was rendered for the amount claimed and also for a sale of enough of the land to pay same, and the land has been sold, and to reverse the judgments aforesaid this appeal is prosecuted.

The answer of appellants sufficiently charges that the vendors were guilty of knowingly and fraudulently misrepresenting the title to the property conveyed; and it is also averred in the answer that appellant relied upon the false representations, and but for the representations and statements of vendors that they had and could convey a clear and unencumbered title appellants would not have made the purchase.

It was incumbent upon appellants to point out the defects in the title, and this they have attempted to do, and the principal question for decision is whether or not the facts stated in the answer show that appellee did not have a good title to the land sold.

It is alleged in substance in the answer that the vendor, Laytham, obtained such title as he had by virtue of a sale made under judg ment of the Mason Circuit Court, in the suit of Joel Laytham v. McElwain; that Walter E. Neal had sold the land to one Kumlong, and he to McElwain, and to satisfy the purchase-money notes of McElwain the land was bought as above stated; that Walter E. Neal derived his title solely under the will of his father, Elias Neal, and that under said will he only owned a life estate in his father's land, and such other life estate of his brothers and sisters as he could purchase or as night come to his hands through inheritance by the death of a brother or sister, and could own no more and could convey no other estate than that which he held under the will or by inheritance, and such purchase would be subject to the conditions and limitations of the will.

It is further alleged in the answer that Walter E. Neal attempted to buy out, and did buy out, a number of the heirs of Elias Neal, and to rent their respective life estates from them, but all of such vendors of Walter E. Neale made the distinct reservations made in Elias Neale's will, and specially declare that should Walter E. violate the same in any way the title to the land conveyed to him shall revert to the respective vendor's legal heirs; that some of Elias Neale's children are living, and many grandchildren; that between thirty and forty acres of the land so sold is covered by the will of Elias Neale, and includes all the improvements, orchard and two springs, dwelling house, barn and garden; that it is worth in the proportion of three acres to one of the other part; that the balance of the land would be of comparatively little value without the said thirty or forty acres.

Elias Neale devised all his property to his wife during her life, and after her death all his land is bequeathed to his children, Thomas, Martha, Waller, George and Tabitha, to each an equal quantity, as exhibited in a plat accompanying the will. He then describes each parcel by numbers, each containing sixteen and one-half

acres.

Then follows the following clause in the will, viz: "It being expressly understood that I give and bequeath the above-described parcels of land to my said several-named children for and during the term of their natural lives, without the power to sell or convey any right to the same during said period; and with the further condition that they are not to rent to nor allow to be occupied by any person or persons, except a brother or sister or their families, any part or parcel of said lands during the time for which it is bequeathed to them severally. Further than that I choose to exercise no control, but leave them at liberty to dispose of the same at the expiration of their several lives as they may think proper."

Appellee's contention is that, inasmuch as the answer failed to allege that the vendor is insolvent or a nonresident, it was for that reason insufficient; also that under the will Elias Neale's children took a life estate under the will as devisees, and took the fee asheirs at law of Elias Neale, and that the restriction on their power of alienation is absolutely void.

This court has often held that where actual fraud was shown on the part of the vendor the vendee was entitled to relief, although he was in the undisturbed possession under a conveyance with cove nants of general warranty. Hence the contention of appellees in that respect can not avail, but it seems to us that, inasmuch as the children of Elias Neale took under his will a life estate, with full power to dispose of the land at their death, they became invested with a complete and perfect title.

It will be seen that no provision is made in the will respecting the land in the event the power given should not be exercised. It is true that the will forbids the sale during life, also forbids the occupancy or use of the land by any person except some of the devisees or their families, but these provisions were manifestly intended for the benefit of the several devisees, and it is not claimed that any of the devisees are complaining or seeking to interfere with appellants' enjoyment or possession of the land; hence it seems to us that the answer failed to show a valid defense.

The judgment of the court below is, therefore, affirmed.

MARION NATIONAL BANK V. PHILLIPS' ADM'RS, &c.

(Filed May 13, 1896—Not to be reported.)

1. Cross appeal-An appellee can not complain by cross appeal of a judgment in favor of his co-appellee, as a cross appeal can affect only the appellant.

2. Misappropriation of proceeds of note-Where notes were executed to a bank to be substituted in renewal of other notes upon which the sureties were bound, and, notwithstanding the cashier knew this, the proceeds were otherwise appropriated, the chancellor properly refused to render judgment in favor of the bank upon the notes. While it is not entirely clear that the cashier knew the purpose for which the notes were executed, the finding of the chancellor to the effect that he did have such knowledge will not be disturbed.

3. Protest-Notice of dishonor--As the parties were joint makers of the notes and the paper was not placed on the footing of a foreign bill of exchange, there was no necessity for protest or notice of dishonor.

W. J. Lisle for appellant.

S. A. Russell, Samuel Avritt and J. P. Thompson for appellees.