Powell v. Powell

68 Ky. 619, 5 Bush 619, 1869 Ky. LEXIS 66

• Court: Court of Appeals of Kentucky
• Decided: September 29, 1869
• Status: Published

Opinion

JUDGE ROBERTSON

dehvened the opinion of the count:

O. R. Powell, owning one undivided third of some lots in Covington, Kentucky, conveyed his title to John Colvin, who conveyed the same to the wife of said O. R. Powell, and her child or children, “begotten” by him, with power in the husband to superintend, and, with her concurrence, sell and convey the property as husband. Shortly after the date of the conveyance, Harriet Louisa Powell, their child, was born, and co instanli became a joint tenant with her mother by the legal effect of the deed to her as prospective co-purchaser. And not long afterwards her parents were divorced, and her father presumed to make to her mother alone a conveyance, purporting to vest in the mother the entire and exclusive title to the third, which Colvin had conveyed to mother and child as joint tenants. The anomalous power in Colvin’s deed did not contemplate a conveyance by the husband to his wife, but only some conveyance by him and her to a stranger, and, even then, of her title only, and not of her infant joint tenant’s independent and indefeasible title.

The title, as conveyed by Colvin’s deed, therefore, remained unaffected by the latter deed, which was utterly void. But on a petition for partition among all parties interested, the said mother, claiming to her own use one entire third, the circuit court decreed it to her and excluded her daughter, who rightfully claims one half of the third erroneously allotted to her mother; and, to obtain proper relief, appeals to this court. The judgment in that respect being erroneous, is reversed, and the cause remanded for a decree allotting to the appellant one sixth, and to her mother only one other sixth, of the land to be divided under the petition.