Boon v. Givens

Court of Appeals of Kentucky

Boon v. Givens

4 Ky. Op. 569, 1871 Ky. LEXIS 258

DecidedJanuary 16, 1871

StatusPublished

This text of 4 Ky. Op. 569 (Boon v. Givens) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boon v. Givens, 4 Ky. Op. 569, 1871 Ky. LEXIS 258 (Ky. Ct. App. 1871).

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Opinion

Opinion of the Court by

Judge Lindsay:

The petitioner in this action alleges that her deceased husband was, on the 20th of September, 1825, upon which day he made the conveyance to Stanislaus Burche, “seized and possessed of the two tracts of land out of which she claims dower. Whether or not he was seized of an estate' in fee simple in said land is not directly charged. The answer, however, distinctly and unequivocally denies that he was ever at any time “seized and possessed” of said lands at all.

There is no proof in the record tending to show that the husband of the appellee was at any time during the coverture in the actual possession of the lands. Nor that he had title of anv kind to the same.

The acceptance of Burche of the husband’s conveyance may [570]*570have the effect of estopping those who hold under him from denying that he had title of some kind, but it can not be construed into an admission that he held such an estate in the lands as will entitle his surviving wife to dower.

Johnson, for appellant. Muir & Wi'clcliffe, for appellee.

Besides, the petitioner signed the deed to Burche, and she admits in her petition that she attempted to relinquish her potential right of dower in the lands. She claims, however, that she did not acknowledge and deliver said deed in the manner and form required by the statute to make it binding upon her. As she repudiates the paper to which she admits she was a party, she can not in a court of‘equity be allowed to rely upon the same as sufficient evidence of itself to authorize her to recover in a proceeding of this kind.

We are of opinion that the record before us does not show that George Given, deceased, was, during his coverture with the appellee, seized iof such an estate in the two tracts of land mentioned in her petition as under the law entitled her to dower.

The judgment of the court below is, therefore, reversed, and the cause remanded for further proceedings consistent herewith.

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Opinion of the Court by

Judge Lindsay:

The petitioner in this action alleges that her deceased husband was, on the 20th of September, 1825, upon which day he made the conveyance to Stanislaus Burche, “seized and possessed of the two tracts of land out of which she claims dower. Whether or not he was seized of an estate' in fee simple in said land is not directly charged. The answer, however, distinctly and unequivocally denies that he was ever at any time “seized and possessed” of said lands at all.

There is no proof in the record tending to show that the husband of the appellee was at any time during the coverture in the actual possession of the lands. Nor that he had title of anv kind to the same.

The acceptance of Burche of the husband’s conveyance may [570]*570have the effect of estopping those who hold under him from denying that he had title of some kind, but it can not be construed into an admission that he held such an estate in the lands as will entitle his surviving wife to dower.

Johnson, for appellant. Muir & Wi'clcliffe, for appellee.

Besides, the petitioner signed the deed to Burche, and she admits in her petition that she attempted to relinquish her potential right of dower in the lands. She claims, however, that she did not acknowledge and deliver said deed in the manner and form required by the statute to make it binding upon her. As she repudiates the paper to which she admits she was a party, she can not in a court of‘equity be allowed to rely upon the same as sufficient evidence of itself to authorize her to recover in a proceeding of this kind.

We are of opinion that the record before us does not show that George Given, deceased, was, during his coverture with the appellee, seized iof such an estate in the two tracts of land mentioned in her petition as under the law entitled her to dower.

The judgment of the court below is, therefore, reversed, and the cause remanded for further proceedings consistent herewith.

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Bluebook (online)

4 Ky. Op. 569, 1871 Ky. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boon-v-givens-kyctapp-1871.