Webb v. Trustees of First Baptist Church , 90 Ky. 117 ( 1890 )

JUDGE BENNETT

delivered the opinion op the court.

London Ferrell willed to Elizabeth Jackson certain real estate situated in the city of Lexington, and to Eleazer Jackson certain other real estate situated in .said city. The said estate was devised to each devisee in fee, but the same was subject to the defeasance that if either devisee should die, before or after the death of the devisor, without leaving lawful issue, or the descendants of such issue, the estate devised to such devisee should go to the other devisee, and if both .should die, before or after the death of the devisor, without leaving lawful issue, or the descendants of such issue, then the estate devised to both should be sold, and the proceeds divided between the First Colored Baptist Church of Lexington, Morton City School and the Orphan Asylum of Lexington — one third to each.

Eleazer Jackson died without having left surviving him living issue, or the descendants of such issue; consequently, Elizabeth Webb, formerly Jackson, took Eleazer" s part of the estate. Said Elizabeth had one •child by her husband, the appellant, which died in infancy, and some time thereafter the mother died, without having had any other child or children.

This suit was instituted by the appellees to have said property sold, and the proceeds divided among them in accordance with the provisions of the will.

It is too plain for 'serious -controversy that Eleazer and Elizabeth took, under said will, a fee subject to be defeated by their -deaths without leaving living lawful issue, or the descendants of such issue, in which event the appellees took the estate. There are no words in the granting clause of the will indicating that the testator intended to devise any estate to the children of Eleazer and Elizabeth Jackson. The estate is willed to these two persons in language that conveys to them an absolute estate, subject only to be defeated upon their dying without living issue,- or the descendants of such. But Elizabeth having had a child by the appellant, the question is, is appellant entitled to curtesy in the land?

This question is settled by this court in the case of Northcut, &c., v. Whipp, &c., 12 B. M., 71, in the affirmative. We are not now disposed to disturb that decision.

Under a decree of the Payette Circuit Court a part of this land was sold, at the instance of the appellant and Elizabeth, for the purpose of investing the proceeds in a small tract of land situated in the State of Ohio for the benefit of the said Elizabeth, and to be held by her under the provisions of the will and in accordance with it. Said land in Ohio belonged to the appellant, and he received the money that Elizabeth’s land sold for as the consideration for the conveyance of his Ohio land to her. A deed was made to Elizabeth for this Ohio land, but the same was not recorded in the State of Ohio. Afterwards the appellant mortgaged this Ohio land to third parties to secure his indebtedness to them, which indebtedness he has never paid. The chancellor, in this case, put the appellant’s curtesy right in the Lexington property in the hands of a receiver, to be rented out by him, and the proceeds, applied to the payment of such indebtedness until the same was discharged. The appellant held only a cnrtesy right in any of this property, including that in Ohio, and he fraudulently mortgaged the fee to the Ohio property; and the court having the control of the property in Lexington for the purpose of adjusting the respective rights of the appellant and appellees thereto — the appellant claiming curtesy in said property — it did right in taking charge of said property, and renting the same out and appropriating the rents to the payment of the liens that the appellant had fraudulently put upon the appellees’ remainder interest in a portion of said property. The mortgagees are not proceeding in this action. The proceeding is against the appellant for the purpose of lifting a cloud off the appellees’ title to this land, and of paying the indebtedness of the appellant, which he had placed as a lien upon this land/ We-do not see any just grounds that he has to complain of this action. He admits that he owes the debt. The fact that the mortgagees might have been apprised of the sale of the land to Elizabeth does not alter the appellant’s attitude towards the mortgagees and the' appellees. He, nevertheless, owes the debt, and the mortgage lien is, as to him, enforceable upon the fee, and, therefore, he has no right to complain.

The judgment is-affirmed.