Opinion op the Court by
Judge Sampson
Reversing.
In a partition proceeding in th.e Magoffin county court, the commissioners, who allotted the lands among the nine adult children of Nathan Howard, deceased, allowed the heirs to draw for the several lots which were numbered from 1 to 9 inclusive. The youngest child, Bertha Howard, was born with deformed hands and feet and was the only one of the family who did not have a home. She had always lived with her father and mother at the homestead and she did not want to leave it. To avoid this, she called in her sisters and brothers, after the lands were divided, and requested them to allot her the dwelling house and ground which had been designated as lot No. 1 by the commissioners. All the heirs present agreed to this except one sister. The plaintiff and appellee in this case, Mrs. Ltjla Deem, an heir, was living' in Texas and was then at her home. Shortly before the division of the land she had visited Kentucky and conferred with her brothers and sisters concerning the division. If we accept the evidence of the appellants, at that time she was very anxious, according to her statements then made, that hpr baby sister, Bertha, the deformed one, should have the house and improvements, because she had no other home and all the other children had a home. When she left Kentucky she requested her brother Dock to draw for her in case there was a drawing for lots, and if she drew the lot with the homestead on it, to give it to Bertha; and she also started a movement among the other children to give to Bertha the old homestead. At that time Mrs. Deem expected to make Texas her future home. When the drawing took place Dock Howard drew for Mrs. Deem lot No. 1, and immediately passed the ticket over to the lame sister, Bertha, and again drew for Mrs. Deem, this time getting lot No. 5. When the drawing was finished, the com[693]*693missioners immediately began to prepare deeds to be executed by tbe several beirs to each other. All these deeds were forwarded to Mrs. Deem in Texas for her and her husband’s signature and acknowledgment. After all the deeds had been properly signed and acknowledged by the different children and their companions, they were ■filed by the commissioners with their written report in the county court. Thereafter the report of the commissioners was duly confirmed and ordered of record. The deeds were also delivered to the grantees and recorded. Bach child book charge of the part which had been allotted to him or to her. Some of them made improvements on their tracts, others cut and sold timber, and several of them sold out to other persons. It appears that about this time Bertha wrote to her sister in Texas telling her about the drawing and thanking her for so kindly consenting to her having lot No. 1. Some correspondence passed about it at that time. Not long after that Mrs. Deem became dissatisfied in Texas and she and her husband moved to Oklahoma where they remained for a short time, and again becoming dissatisfied, she decided to return to Kentucky to live. She and her husband wrote a joint letter to Bertha asking her to rent them the home place on which she then lived, and her to live with them. Receiving no answer, they again wrote to Bertha as follows:
“Sept. 19/15, Wayne, Okla.
“Miss Bertha Howard,
“Dear Sister:
“I am writing you this to see if I can make arrangements with you to rent or lease the home place. Now, Pet, if you will rent me the home place, I will do all I can to make you comfortable and give you comforts in, this life that you have never had. I am writing you for you to live with I and Lula and I will treat you just the same as one of my family if you will rent me your place so that I will have assurance of not being thrown out at the end of each year. I will come back and make you a comfortable home. I would not feel like going and spending money and improving the place without some insurance for my money back. I am sending this letter in Prock’s letter so I know you will get it and not get into anyone’s hands that it should not before you receive it. I think it is your first duty to remember who. [694]*694your friends was and your next to remember your enemies. Pet, I don’t want one cent off of you or from you; all I want to do is to live and let live, and I think if you let the parties have the place you are figuring on you will bring trouble on your hands, and the chances are a big lawsuit. I don’t want to sway you one way or the other. Pet, you know how you come by the place, and I have just found out that the ticket for the home place was drawn for Lula, and I think if anybody has the preference to the home place, it is Lula and myself, but do as you please. If you think you do not want to live with us or that you could live with us and be contented, do what you think is best. We are all well and doing very well. Hope you are well and enjoying yourself.
“Pet, answer soon and let me know,
“Your brother, Jim Deem.
“We written you about two weeks ago and have never got no answer.
“A few lines from Lula:
“Now Pet, you know how I have fought for you and I don’t think you can afford to turn me down; now, if you want me to come say so, and I will. The reason I want to come so bad is on account of Chester, so answer as soon as you get this and let me know.
“Your loving sister, Lula Deem.
“Now write me one way or the other and let us know so we will know what to do. ’ ’
Failing to make an arrangement with Bertha for the leasing of the home place Mrs. Deem set up claim to lot No. 1, asserting title in herself under the drawing instituted by the children in the allotment. She charged fraud and brought an action in the Magoffin circuit court to set aside the deed and division and to recover the home place of Bertha and her grantee, Wiley Arnett. She recovered judgment and the defendants appealed to this court, and we reversed that judgment because the suit to vacate, in part, the judgment of the county court should have been brought in the eounty'court and not in the circuit court. This opinion will be found in 178 Ky. 760, and it contains an extended statement of the facts. Yery soon thereafter another suit was brought by Mrs. Deem and husband against Bertha Ploward and Wiley Arnett in the Magoffin county court. After preparation [695]*695and trial, the court adjudged Mrs. Deem entitled to the relief she sought, which was a re-allotment of the lands of her ancestor. Defendants, Bertha Howard and Wiley Arnett appeal.
It is conceded by all of the children of Nathan Howard that the division of the land was a fair one, and the only complaint is that in the drawing for lots Dock Howard, as the representative of Mrs. Deem, entered into collusion with Bertha Howard for the purpose of fraudulently depriving Mrs. Deem of lot No. 1, which he drew for her. All this is denied by appellants, but we think that if it'be admitted that Dock Howard drew lot No. 1, for Mrs. Deem, and thereafter turned it over to Bertha Howard for the purpose of depriving Mrs. Deem of lot No. 1, and of giving it to Bertha without the knowledge or consent of Mrs. Deem she would not be entitled to recover in this action. In the first opinion of this case, we said:
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Opinion op the Court by
Judge Sampson
Reversing.
In a partition proceeding in th.e Magoffin county court, the commissioners, who allotted the lands among the nine adult children of Nathan Howard, deceased, allowed the heirs to draw for the several lots which were numbered from 1 to 9 inclusive. The youngest child, Bertha Howard, was born with deformed hands and feet and was the only one of the family who did not have a home. She had always lived with her father and mother at the homestead and she did not want to leave it. To avoid this, she called in her sisters and brothers, after the lands were divided, and requested them to allot her the dwelling house and ground which had been designated as lot No. 1 by the commissioners. All the heirs present agreed to this except one sister. The plaintiff and appellee in this case, Mrs. Ltjla Deem, an heir, was living' in Texas and was then at her home. Shortly before the division of the land she had visited Kentucky and conferred with her brothers and sisters concerning the division. If we accept the evidence of the appellants, at that time she was very anxious, according to her statements then made, that hpr baby sister, Bertha, the deformed one, should have the house and improvements, because she had no other home and all the other children had a home. When she left Kentucky she requested her brother Dock to draw for her in case there was a drawing for lots, and if she drew the lot with the homestead on it, to give it to Bertha; and she also started a movement among the other children to give to Bertha the old homestead. At that time Mrs. Deem expected to make Texas her future home. When the drawing took place Dock Howard drew for Mrs. Deem lot No. 1, and immediately passed the ticket over to the lame sister, Bertha, and again drew for Mrs. Deem, this time getting lot No. 5. When the drawing was finished, the com[693]*693missioners immediately began to prepare deeds to be executed by tbe several beirs to each other. All these deeds were forwarded to Mrs. Deem in Texas for her and her husband’s signature and acknowledgment. After all the deeds had been properly signed and acknowledged by the different children and their companions, they were ■filed by the commissioners with their written report in the county court. Thereafter the report of the commissioners was duly confirmed and ordered of record. The deeds were also delivered to the grantees and recorded. Bach child book charge of the part which had been allotted to him or to her. Some of them made improvements on their tracts, others cut and sold timber, and several of them sold out to other persons. It appears that about this time Bertha wrote to her sister in Texas telling her about the drawing and thanking her for so kindly consenting to her having lot No. 1. Some correspondence passed about it at that time. Not long after that Mrs. Deem became dissatisfied in Texas and she and her husband moved to Oklahoma where they remained for a short time, and again becoming dissatisfied, she decided to return to Kentucky to live. She and her husband wrote a joint letter to Bertha asking her to rent them the home place on which she then lived, and her to live with them. Receiving no answer, they again wrote to Bertha as follows:
“Sept. 19/15, Wayne, Okla.
“Miss Bertha Howard,
“Dear Sister:
“I am writing you this to see if I can make arrangements with you to rent or lease the home place. Now, Pet, if you will rent me the home place, I will do all I can to make you comfortable and give you comforts in, this life that you have never had. I am writing you for you to live with I and Lula and I will treat you just the same as one of my family if you will rent me your place so that I will have assurance of not being thrown out at the end of each year. I will come back and make you a comfortable home. I would not feel like going and spending money and improving the place without some insurance for my money back. I am sending this letter in Prock’s letter so I know you will get it and not get into anyone’s hands that it should not before you receive it. I think it is your first duty to remember who. [694]*694your friends was and your next to remember your enemies. Pet, I don’t want one cent off of you or from you; all I want to do is to live and let live, and I think if you let the parties have the place you are figuring on you will bring trouble on your hands, and the chances are a big lawsuit. I don’t want to sway you one way or the other. Pet, you know how you come by the place, and I have just found out that the ticket for the home place was drawn for Lula, and I think if anybody has the preference to the home place, it is Lula and myself, but do as you please. If you think you do not want to live with us or that you could live with us and be contented, do what you think is best. We are all well and doing very well. Hope you are well and enjoying yourself.
“Pet, answer soon and let me know,
“Your brother, Jim Deem.
“We written you about two weeks ago and have never got no answer.
“A few lines from Lula:
“Now Pet, you know how I have fought for you and I don’t think you can afford to turn me down; now, if you want me to come say so, and I will. The reason I want to come so bad is on account of Chester, so answer as soon as you get this and let me know.
“Your loving sister, Lula Deem.
“Now write me one way or the other and let us know so we will know what to do. ’ ’
Failing to make an arrangement with Bertha for the leasing of the home place Mrs. Deem set up claim to lot No. 1, asserting title in herself under the drawing instituted by the children in the allotment. She charged fraud and brought an action in the Magoffin circuit court to set aside the deed and division and to recover the home place of Bertha and her grantee, Wiley Arnett. She recovered judgment and the defendants appealed to this court, and we reversed that judgment because the suit to vacate, in part, the judgment of the county court should have been brought in the eounty'court and not in the circuit court. This opinion will be found in 178 Ky. 760, and it contains an extended statement of the facts. Yery soon thereafter another suit was brought by Mrs. Deem and husband against Bertha Ploward and Wiley Arnett in the Magoffin county court. After preparation [695]*695and trial, the court adjudged Mrs. Deem entitled to the relief she sought, which was a re-allotment of the lands of her ancestor. Defendants, Bertha Howard and Wiley Arnett appeal.
It is conceded by all of the children of Nathan Howard that the division of the land was a fair one, and the only complaint is that in the drawing for lots Dock Howard, as the representative of Mrs. Deem, entered into collusion with Bertha Howard for the purpose of fraudulently depriving Mrs. Deem of lot No. 1, which he drew for her. All this is denied by appellants, but we think that if it'be admitted that Dock Howard drew lot No. 1, for Mrs. Deem, and thereafter turned it over to Bertha Howard for the purpose of depriving Mrs. Deem of lot No. 1, and of giving it to Bertha without the knowledge or consent of Mrs. Deem she would not be entitled to recover in this action. In the first opinion of this case, we said:
“We think, however, that the situation is the same as if the commissioners had themselves allotted the shares, as it was provided in the order they should do, and as if they or one of them had made the deeds in place of leaving the allotment and the making of the deeds to the heirs, because in the suit of the heirs for a division and the proceedings had therein, the commissioners were charged with these duties, and if they permitted the heirs to select for themselves the lots they should each have,it was the same in effect as if the commissioners had made the allotment ... We say this because the heirs were permitted to draw for the lots as they did do, and to make the deeds as they did do, by the consent of the commissioners. And when this action on the part of the heirs was approved by the commissioners, as it was,‘the result was the same as if the commissioners had, in fact, themselves made the allotment and the deeds.”
It was the duty of the commissioners appointed by the county court to divide and allot the lands among the nine children of Nathan Howard, giving to each a share equal to each of the others in value, its nature, quality and quantity considered. It was not necessary to have the drawing, though it need not be condemned. After the drawing was over, the commissioners had the power, had they so desired, to disregard it altogether and to have allotted the lands in an entirely different way. For instance they could have given to Elizabeth lot No. 5, and [696]*696to Mrs. Deem lot No. 3, notwithstanding they drew different numbers. The fact that the commissioners adopted the drawing, in part, did not require them to adopt it altogether, or to disregard it in any particular whatever. It was wholly a matter of discretion with the commissioners. It may be true that Mrs. Deem did not consent for Bertha,to have lot No. 1 in case it was drawn for Mrs. Deem, but whether she did or not would make no difference so far as the validity of the partition proceedings are concerned.
We have examined the evidence with great care, and we are convinced that Mrs. Deem commendably and in a praiseworthy spirit consented for her unfortunate sister Bertha to have the home place. The weight of the evidence is to this effect. In addition to the oral testimony given, the letter quoted above, dated at Wayne, Oklahoma, September 19, 1915, addressed to Bertha Howard and signed by Jim Deem and Lula Deem leaves no doubt that Mrs. Deem consented for Bertha to have lot No. 1 in case it was drawn for Mrs. Deem. Moreover, the letter rhows that the Deems, before it was written, had received information that lot No. 1 had been drawn for Mrs. Deem and given to Bertha, because it says “Pet, you know how you come by the place, and I have just found it out that the ticket for the home place was drawn for Lula, and I think if anybody has the preference to the home place it is Lula and myself, but do as you please.” With this information the Deems were writing Bertha to rent the place from her, thus recognizing her ownership of ife The letter also says, “I think it is your first duty to remember who your friends was and your next to remember your enemies.” In the same letter are a few lines from Lula, saying “You know how I have fought for you, and I don’t think you can afford to turn me down.” All this bears out the contention of Bertha that Mrs. Deem had consented for her to have lot No. .1, and that this lawsuit is an afterthought.
For these several reasons the judgment must be reversed with direction to dismiss the petition.
Judgment reversed.