Owings v. Tucker

13 S.W. 1078, 90 Ky. 297, 1890 Ky. LEXIS 82

• Court: Court of Appeals of Kentucky
• Decided: June 19, 1890
• Status: Published

Opinion

JUDGE BENNETT

delivered the opinion op the court.

In 1853 David L. Jones deeded jointly to his children as a gift his home tract of land, containing four hundred and seventy-five acres, reserving the right of maintenance out of the land. H. L. Jones was an infant son of the donor, and was one of the donees. In 1859 David L. Jones divided this land between said children, and made each a deed to his part, deducting previous advancement's from his interest. David L. Jones conveyed by deed the part designed for H. L. Jones to him for life, remainder to his children. Several years thereafter the appellant caused the life interest of H. L. Jones in this land to be sold by the sheriff, and he purchased it, and received a deed for it, and took the possession of it under said deed, and so held the possession for several years, when he discovered, as he says, that David L. Jones had, in 1853, conveyed to H. L. Jones an undivided fifth interest in said tract of land in fee, which he had sold under another execution to satisfy the remainder of the debt existing after the sale of said life interest.

Did H. L. Jones acquire title under the deed of 1853 ? Certainly not. The case of Davenport v. Prewitt, &c., 9 B. M., 98, upon which the appellant relies, says that, in order to make a valid conveyance, there must be both a grantor and grantee, and if the grant is beneficial to tfie grantee, it may be presumed that lie fias accepted it; and if, from tfie nature of tfie grant, tfiis presumption does not arise, an acceptance of tfie grant must be otherwise shown, else there is no grant. And if a grant is made to an adult without his knowledge or consent, it is no grant, because fie can not be made a grantee without his knowledge and consent, and when tfie knowledge is brought home to him fie may reject tfie grant. Also, equity will imply an acceptance of a grant made to an infant, if beneficial to him, but fie may reject tfie grant upon his arrival at age, if fie has not done some act which will estop him.

Here there is no proof whatever that H. L. Jones ever accepted tfie deed of 1853. On tfie contrary, it is expressly proven that fie did not accept said deed, but accepted the deed of 1859, and took possession of tfie land under it, and field tfie possession under it until it was sold by tfie appellant. Tfie old suit, upon which tfie appellant relies as evidencing that H. L. Jones accepted tfie deed of 1853, explicitly shows tfie reverse of that fact. It shows that H. L. Jones accepted tfie deed of-1859. Also, it is shown beyond all cavil that tfie deed of 1853 was, prior to tfie deed of 1859, canceled by a reconveyance of' the land. Tfiis is shown not only by tfie decided weight of evidence in tfiis case, but by tfie answer of J. M. Jones in tfie old suit referred to, which is not denied in tfie particular that it alleges tfie reconveyance.

Tfie judgment is affirmed.

Judge Holt not sitting.