(218 S.W.)

the specific property, but its value or equivalent. Doty's Adm'r v. Doty's Guardian, supra; Benge v. Hiatt's Adm'r, 82 Ky. 666, 6 Ky. Law Rep. 714, 56 Am. Rep. 912; Stowers v. Hollis, 83 Ky. 544, 7 Ky. Law Rep. 549; Mercer v. Mercer, 87 Ky. 30, 9 Ky. Law Rep. 870, 7 S. W. 401, and other cases cited. In the recent case of Duke's Adm'r v. Crump, 185 Ky. 325, 215 S. W. 42, we said:

holding that for a breach of contract to devise the measure of recovery is the value of the property agreed to be devised, it will be found that that rule is confined to cases where the benefit to the intestate cannot be measured in money, and there is no way to determine the amount of recovery, except by the pecuniary standard fixed by the parties to the contract"

"While it is true that there is a class of cases

alleged in the petition. Of course, when the But holding the statute of frauds, not witnesses for the defendant are called all this a sword, but only a shield, we have frequently may be explained away or contradicted, but written that one who has performed his part we are of opinion that there was more than of a contract, similar to the one under consida scintilla of evidence supporting the plain-eration, and the other party has failed, as in tiff's cause of action, and the trial court this case, the one performing may recover, not should have submitted the case to the jury. Mrs. Walker was not related to Dill in any way whatever. The parties were not living together as one family by mutual agreement and for the advantage of all, but, according to appellant's contention, Dill was residing with Mr. and Mrs. Walker for the purpose of obtaining care and attention, board and lodging, and not for the mutual advantage of the Walkers, except in so far as he promised to compensate them for their care and attention. [2] The rule applied in the case of Armstrong v. Shannon, 177 Ky. 549, 197 S. W. 950, and other cases of similar character, is not applicable in all respects to cases of the character of the one now under consideration. The contract relied upon in the ArmstrongShannon Case was one between relatives living together by mutual consent for the advantage of all, while the contract in this case-and further that, where "the benefit to the at bar is one between strangers. In a case intestate could be measured by ascertaining where a relative lives with another or other the reasonable value of plaintiff's services, relatives as a member of the family by mu- and no resort to the standard fixed by the tual consent, no presumption is to be in- contract was necessary," then the plaintiff dulged that the one is to pay, or the other is is entitled to recover only the value of the to receive, compensation for board or services, services performed, and not the amount fixed but in a case between strangers quite a dif- by the contract. In other words, in cases in ferent rule is applied. Where a stranger is which it is possible to determine from the taken care of, boarded and lodged, a con- evidence the reasonable value of the services tract to pay for the services, board, and lodg- performed, this will be the measure of reing will be implied. Here, however, Mrs. covery, but where the thing done or services Walker contends that she had specific con- performed is of such nature as not to admit tract with the deceased, Dill, giving, or will- of a reduction to a monetary value, then the ing to her at his death the house and lot in contract made between the parties will be rewhich they all lived, of the value of $2,250.ceived to fix the value; and in case where Evidence is introduced which tends strongly lands or other property is agreed to be deto support the allegations of the petition, and vised, the value of such property or land will to establish the contract relations between be considered as the measure of recovery, Mrs. Walker and Mr. Dill. Mrs. Walker was not a competent witness, nor did she offer to testify. She called a number of witnesses, who did not hear she and Dill enter into the contract, but who did hear Dill state

the terms of the contract and confirm and ratify it.

though the thing itself cannot be recovered nor the contract specifically enforced.

not the slightest evidence in the record that [5] The contention is made that there is Mrs. Walker, and on this point no witness the contract was ever accepted by appellant, [3] In cases of this kind we have frequent-ed the contract; but practically every witness specifically testifies that Mrs. Walker acceptly held that an action could not be maintain- that testified in the case related facts showed for specific performance because the contract is within the statute of frauds, proing that Mrs. Walker had entered upon the hibiting the sale or transfer of land by parol, performance of the contract, was carrying it and, further, that a part performance of a contract, such as the performance of service or the delivery of consideration, will not take the contract out of the statute of frauds. Doty's Adm'r, etc., v. Doty's Guardian, 118 Ky. 204, 80 S. W. 803, 26 Ky. Law Rep. 63, 2 L. R. A. (N. S.) 713, 4 Ann. Cas. 1064; Grant v. Craigmiles, 1 Bibb, 205; Hayden v. McIlvain, 4 Bibb, 58; Holtzclaw v. Blackerby, 9 Bush, 40.

out and performing it in detail at the time of the death of Dill, which was abundantly sufficient to show that she accepted the con

tract.

Upon a return of the case to the lower court new trial will be had; and, if the evidence upon another trial is similar to that upon the last trial, the court will submit the case to the jury under proper instructions. Judgment reversed.

72 acres, that of the latter 58 acres, which they obtained by devise or inheritance through the death of Mark Lile, a bachelor brother. The tracts adjoined, and as the 58acre tract of Mary J. Lile contained no buildings, and the 72-acre tract of Sarah E. Lile the dwelling house and other buildings which had been occupied by the former owner of both parcels of land, the sisters both resided practically the remainder of their respective lives on the 72-acre tract, obtaining a joint support from the two tracts, and sharing in common the rents and profits derived from their cultivation. While thus residing together each of the sisters executed a will. By that of Sarah E. Lile the 72 acres of land, of which she was the owner, was devised to

2. WILLS 481-SPEAK ONLY FROM DEATH her sister, Mary J. Lile, for life, with remain

OF TESTATOR.

A will speaks from the death of testator, and cannot operate to dispose of property, though mentioned in and attempted to be devised by its provisions, of which the testator was not the owner at the time of his death.

3. Vendor anD PURCHASER 239(9)—INNOCENT SUBSEQUENT GRANTEE ACQUIRES TITLE TO PROPERTY OBTAINED BY fraud.

An innocent grantee of one who obtained land by fraud acquires good title to the land. 4. VENDOR AND PURCHASER 239(9)-INNOCENT GRANTEE OF ONE OBTAINING PROPERTY FROM ONE LACKING IN MENTAL CAPACITY ACQUIRES GOOD TITLE.

An innocent grantee of one who obtained a conveyance from one lacking mental capacity acquired good title as against the original gran

tor.

der in fee simple, at her death, to the children of their brother, Thomas J. Lile. By the will of Mary J. Lile the 58 acres of land owned by her was devised to her sister, Sarah E. Lile, for life with remainder in fee simple, at her death, to the children of their brother Joe M. Lile.

The wills bear date August 12, 1896. Sarah E. Lile died in 1912, Mary J. Lile in 1913, and the will of each was admitted to probate by the Muhlenburg county court shortly after her death. It turned out, however, that neither testatrix at the time of her death had title to the land devised by her will; the 72-acre tract of Sarah E. Lile having by deed executed in 1909 been conveyed by her to Willie Lile, a great-nephew, and the 58-acre tract of Mary J. Lile sold and, by deed of January 25, 1909, conveyed by her to one

5. INSANE PERSONS 61-DEED OF PERSON Jesse Murphy, who, by deed of December 24,

OF UNSOUND MIND NOT VOID.

The deed of a person of unsound mind is not void, but voidable.

1910, sold and conveyed it to Will Gary.

This action was brought in the court below December 31, 1913, by the appellants, Lucy

6. DEEDS 196(1)—GRANTOR PRESUMED TO Phillips and others, children of Joe M. Lile,

HAVE MENTAL CAPACITY.

There is a presumption that the grantor of lands was possessed of sufficient mental capacity to give effect to his conveyance, and one attacking such a conveyance must overcome such a presumption by more than a mere equilibrium of testimony.

Appeal from Circuit Court, Muhlenburg County.

Action by Lucy Phillips and others against Jesse Murphy and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Hubert Meredith, of Greenville, for appellants.

against the appellees, Jesse Murphy and Will Gary, setting up claim of title as remaindermen under the will of Mary J. Lile to the 58acre tract of land conveyed by her to Murphy and by the latter to Gary, and attacking the deeds as void on the grounds: (1) That as by virtue of an alleged parol agreement between the sisters they lived together and enjoyed the use of their lands in common while both lived, in consideration of the execution by each of a will devising her land to the other for life, with remainder to the children of the brother named in her will, such agreement put it out of the power of either to sell or by deed convey her part of the land, the

T. J. Sparks and Belcher & Belcher, all of one to Willie Lile and the other to the appelGreenville, for appellees.

lee Jesse Murphy, as attempted; (2) that the grantors were mentally incapable of unSETTLE, J. It appears from the aver- derstanding the transactions involved in the ments of the petition in this case that Sarah execution of the deeds made by them, reE. Lile and Mary J. Lile, elderly unmarried spectively, and that the deed from Mary J. sisters, each owned a parcel of land in Muh- Lile to the appellee Murphy was obtained by lenburg county, that of the former containing | fraud and coercion practiced by him upon

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S. W.)

the grantor, in which he was assisted by Wil- [ deed. But, on the other hand, substantially lie Lile and J. Lile, his father, which alleged an equal number of witnesses, including two fraud and coercion, it was further averred, al-physicians whose depositions were taken for so rendered void the deed from the appellee Murphy conveying the same land to the appellee Gary. It does not appear from the record before us whether the remaindermen under the will of Sarah E. Lile have sued to set aside the deed from her to Willie Lile.

The appellees answered separately, traversing the averments of the petition, and that of the appellee Gary alleging his good faith in the purchase of the land and acceptance of the deed from Murphy and denying knowledge or means of information on his part of any mental incapacity on her part to make the deed, or fraud or coercion practiced by Murphy in his purchase of the land or procurement of the deed to same. The affirmative matter of each answer was controverted by reply. On the submission of the case the circuit court rendered judgment dismissing the petition at appellants' cost; hence this appeal.

appellees, testified that, while Mary J. Lile was old, illiterate, and possessed of little experience in business affairs, they regarded her a woman of sufficient mind to enter into an ordinary business transaction, to know the value of land, and understand her rights in the matter of making a sale of her land and a conveyance of it by deed. It does, however, appear from the evidence that both Mary J. Lile and Sarah E. Lile had great confidence in their nephew, J. Lile, who lived with them, managed their property, and tended to their business many years. Indeed, it appears that the sale of Mary J. Lile's land to the appellee Murphy resulted from an indebtedness, originally $600, of J. Lile to him evidenced by a note, which, together with an additional loan of $600 to him from Murphy, making altogether $1,200, the aunts, Mary J. Lile and Sarah E. Lile, assumed to pay at J. Lile's request, and to secure its payment they

the 72 and 58 acre tracts of land.

The $1,200 note, after running until, with the accrued interest, it amounted to about $1,700, was credited by the proceeds of timber sold by Murphy from the land of Mary J. Lile with her consent, and the balance thereafter paid in full by the sale and conveyance to Murphy of the 58-acre tract of land by Mary J. Lile. When so discharged, the balance due on the note, principal and interest, amounted to something over $900; and this sum, according to the testimony of Murphy, with $425 paid by him to Willie and J. Lile, $200 of it to be used by Willie in the purchase of a pair of mules, and the remainder to J. Lile to be applied to the needs of Mary J. Lile, making altogether $1,300, constituted the consideration for the 58 acres of land conveyed Murphy by her.

[1, 2] Appellants' first ground of attack up-gave to Murphy a mortgage covering both on the deed from Mary J. Lile to the appellee Murphy was insufficient to authorize its cancellation; and no claim is made by their counsel that authority can be found to support the contention. The alleged agreement between the sisters to reside while both lived upon and enjoy their lands in common and each dispose of her own land by will as planned in such agreement was given no legal efficacy by the execution then or later of a will by each as agreed. The agreement, not being in writing, was clearly within the statute of frauds. It could not have prevented the parties thereto from revoking the wills made by them respectively, though they were executed to carry out the agreement; nor did the existence of the wills interfere with the legal right of the makers of them to sell and by deed convey the lands that, but for their previous sale and conveyance, would have been disposed of under the devises declared by the will. A will speaks from the death of the testator, and it cannot operate to dispose of property, though mentioned in and attempted to be devised by its provisions, of which the testator was not the owner at the time of his

death.

It is insisted for appellants that Mary J. Lile was not credited upon the $1,200 note with the full proceeds of timber sold from her land. According to the testimony of Murphy, corroborated by one other witness, the note was given credit for $1,000 as the proceeds of the timber, which, except $175, he claimed to have been paid Mary J. Lile, was all that was received for the timber. We do

Appellants' second ground of attack upon the deed from Mary J. Lile to the appellee not find that Murphy's testimony is contraMurphy is, as we have seen, bottomed upon dicted as to this matter, save by that of Wilthe theory that the grantor was mentally in- lie Lile, which was to the effect that the note competent, and that she was induced to exe- was not credited by all the timber money, and cute it by the fraud of the grantee assisted that only $150 of it was paid Mary J. Lile; by J. Lile and Willie Lile. We do not think but he did not know or state what sum was the mental incapacity of the grantor is well realized from the sale of the timber. He furestablished by the evidence. Quite a number ther contradicted the testimony of Murphy as of witnesses, one of them a physician, whose to the disposition made of the money paid by depositions were taken by appellants, testi- the latter to himself and father when he refied that she was of weak mind, and by rea-ceived from Mary J. Lile the deed to the son thereof wholly incapacitated to under- land; for as to this matter Willie testified standingly sell a tract of land or execute a that no part of the money then paid them

On the whole case we find no error in the judgment of the circuit court; hence it is affirmed.

was for the use of Mary J. Lile, but the This may also be said of the appellants whole of it was paid to compensate them for in this case, and, furthermore, as already their services in procuring of her the deed stated, if such incapacity on the part of Murfor Murphy. J. Lile's deposition was not tak-phy's grantor as claimed had been proved in en, though repeated attempts were made to this case, it could not have rendered invalid obtain it. We think the adequateness of the the conveyance made by him to Gary, an inconsideration for the sale and conveyance of nocent purchaser of the land. the land is fairly shown by the evidence, but the blood relationship of J. and Willie Lile to Mary J. Lile, her confidence in them, their influence over her, and the part they admittedly took in the sale and conveyance of her land, give color to the appellants' claim of fraud in the transaction; and, if Willie Lile's testimony should be accepted against that of Murphy and his corroborating witnesses, it would be strongly persua-1. PARTIES 96(5) sive of the fraud in the conveyance charged. On the other hand, if Murphy and his witnesses are to be believed, it was free of fraud.

as

[3, 4] However, if fraud on the part of Murphy in obtaining the conveyance were conceded, or the mental incapacity of the grantor at the time of the conveyance had been shown, such fraud or incapacity would not affect the good faith of the appellee Gary as purchaser of the land from Murphy, or the validity of the deed conveying him the land made by the latter; for the evidence fails to show that he at the time of the conveyance to him had any knowledge of such fraud or incapacity, or was in possession of such facts as should have put him upon inquiry as to either. Moreover, although the death of Mary J. Lile did not occur for more than a year after the land was conveyed to Gary, no complaint was ever made to him by her or for her of fraud in the purchase of the land from her by Murphy or its sale by him to Gary. Under these facts his right to retain the land cannot be questioned. Hall v. Bollen, 148 Ky. 20, 145 S. W. 1136, Ann. Cas. 1913E, 436; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S. W. 675.

[5, 6] As to the question of Mary J. Lile's alleged want of capacity, the rule in this state is that the deed of a person of unsound mind is not void, but voidable. Wathens v. Skaggs, 161 Ky. 600, 171 S. W. 193; Breckinridge v. Ormsby, 1 J. J. Marsh, 236, 19 Am. Dec. 71; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S. W. 675; Logan v. Vanarsdall, 86 S. W. 981, 27 Ky. Law Rep. 822; Dowell v. Dowell's Adm'r, 137 Ky. 167, 125 S. W. 283. As said in Bevins v. Lowe, 159 Ky. 439, 167 S. W. 422:

"To overcome this presumption [that the grantor of lands is possessed of sufficient mental capacity to give effect to his conveyance], there must be more than a mere equilibrium of testimony. A requirement of this rule the plaintiffs have failed to meet. The burden of proof was upon them; they have failed to sustain it."

CRADDOCK v. BARNETT et al.

(Court of Appeals of Kentucky. Feb. 6, 1920.)
WAIVER OF REQUIRE-
MENTS THAT INTERVENING PETITION BE VER-
IFIED AND PARTY BE MADE SUCH BY ORDER.

An agreed order, in an action for rent and
ative allegations in the petition of the wife of
the possession of land, that the material affirm-
defendant, to be made a party were controvert-
ed of record, etc., was a waiver of the require-
ment that such intervening petition be verified,
and that she be made a party to the suit by
order, as required by Civ. Code Prac. § 29.
2. PARTIES 39-INTERVENTION BY WIFE OF

DEFENDANT PROPER IN ACTION TO RECOVER
LAND.

Under Civ. Code Prac. § 29, in an action to
recover land in the possession of defendant, his
wife, having asserted her right and title to the
property, was properly allowed to intervene.
3. JUDGMENT ~256(5)—VERDICT FOR DEFEND-

ANT SUPPORTS JUDGMENT FOR INTERVENER AS
AGAINST PLAINTIFF.

In an action for rent and the possession of land, wherein defendant's wife intervened and claimed title, verdict for defendant supports a judgment for intervener, since judgment either for the original defendant or such wife was conclusive against any claim of right, title, or interest in plaintiff.

4. APPEAL AND ERROR

223-No COMPLAINT CAN BE MADE OF ENTRY OF JUDGMENT UNOBJECTED TO.

Where no objection was made to entry of judgment in behalf of a defendant on verdict for her, if such entry was erroneous, complaint cannot be made on appeal.

Appeal from Circuit Court, Fulton County.

Action by J. M. Craddock against Connie Barnett in which Lillie Barnett intervened. From judgment for intervener, plaintiff appeals. Affirmed.

W. J. Webb, of Mayfield, and F. S. Moore, of Hickman, for appellant.

B. T. Davis, of Hickman, for appellee.

QUIN, J. In this action it is alleged by plaintiff (appellant) that he was the owner and entitled to the possession of a certain described tract of land of about five acres, but that defendant (appellee) without plain

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes