October 10, 2012

Ewell, et al. v. Tye, Laurel, 1903

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EWELL et al. v. TYE.

COURT OF APPEALS OF KENTUCKY

76 S.W. 875; 1903 Ky. LEXIS 297; 25 Ky. L. Rptr. 976

November 17, 1903, Decided

PRIOR HISTORY:  [**1]  Appeal from Circuit Court, Laurel County "Not to be officially reported."
Action by Sarah F. Tye for the allotment of dower against R. L. Ewell and others. From a judgment in favor of plaintiff, defendants appeal.

DISPOSITION: Reversed and remanded.

COUNSEL: R. L. Ewell, for appellants. 

JUDGES: HOBSON, J. 

OPINION BY: HOBSON 

OPINION

 [*875]  HOBSON, J. Appellee, Sarah F. Tye; married P. N. Tye in the year 1860; and was his wife until his death on November 11, 1896. During the coverture he owned the land in contest, lying, in Laurel county, and on May 5, 1897, she filed this suit for the allotment of dower to her therein, making Robert, S. Hood, R. L. Ewell, and J. D. Smith defendants. She alleged in her petition that she did not know how the defendants came in possession of the land, or under what claim they held, or how much each of them held, or whether they were holding jointly, except she understood that the defendant Hood purchased some part of the land from Ewell and Smith. She called upon them to show what part of [**2]  the land each of them held. Hood filed an answer on February 8, 1898, traversing the allegations of the petition. He also pleaded that on March 9, 1874, the land was sold under an execution against P. N. Tye, and purchased by E. J. Freeman, who received  [*876]  a sheriff's deed therefor on October 7, 1886, and took possession of the land, Tye failing to redeem it; that after this Freeman sold the land to Ewell and Smith, who sold it (with some other land belonging to Ewell); to him. Ewell and Smith entered a motion to have their names stricken from the action, and in support of this motion filed the affidavit of Ewell stating that Ewell and Smith neither held, claimed, nor were in the possession of the land in controversy. A few days later, and before the motion was acted on the defendants, by leave of court, withdrew the answer of Hood and the affidavit of Ewell, and entered a motion that the plaintiff verify her petition. In support of this motion the affidavit of Ewell and Smith was filed. No further steps were taken in the action until January 23, 1900, when the plaintiff gave her deposition. On February 4, 1902, an order was made as follows: "Submitted." On February 7th this [**3]  order, was made: "This cause is submitted on exceptions to depositions." But on February 18th affidavits were filed on the exceptions, and on the same day a judgment was entered in favor of the plaintiff adjudging her dower in the land, and appointing commissioners to lay it off. On February 20th the defendants Hood and Ewell filed their affidavits, and moved the court to set aside the judgment and allow them to prepare their defense. In the affidavit of Ewell it was shown that the defendant Smith died on December 17, 1900, and that there had been no revivor against his representatives, or abatement of the action as to them; that no steps had been taken in the action since February, 1898; and in both the affidavits it was shown that the place lay waste for a number of years before Hood took possession, the buildings and fences rotting down and the land growing up in thickets, and that Hood had put lasting and valuable improvements on the land, greatly enhancing its value. The court overruled the motion to set aside the judgment, and the defendants appeal.

The plaintiff had not verified her petition, and until she did so, or the motion of the defendants was overruled requiring [**4]  her to verify it, they were not required to plead to it and make up the issue. Smith was a defendant to the action and when he died the action did not stand for trial as to the other defendants until it was revived against his representatives, or abated as to them. There is no order in the record overruling the exceptions to the deposition of Mrs. Tye, or acting on them. On the whole record it seems clear that the defendants were caught unprepared, and that the condition of the record did not warrant a submission. The affidavits are sufficient to show that notice was served on the defendants of the taking of Mrs. Tye's deposition, and we conclude from an inspection of the whole deposition including the officer's certificate, that it was concluded on January 25, 1900. The exceptions to the deposition are not, therefore, well taken, and should be overruled, but the defendants should have leave to cross-examine the witness if they desire to do so. On the return of the case the circuit court will rule on the motion for the plaintiff to verify her petition, and after the action is revived or abated as to Smith's representatives will allow the defendants to file their answer, and after the [**5] issues are made up to take their proof. Section 2139, Ky. St. 1899, provides: "Whether the recovery is against the heir or devisee or purchaser from the husband, the wife shall be endowed according to the value of the estate when received by they heir, devisee or purchaser, so as not to include in the estimated value any permanent improvements he has made on the land; against the heir or his devisee or his alienee, her claim for rent shall not exceed five years before action and against a purchaser from the husband shall only be from the commencement of the action, and in either case it shall continue up to final recovery." In Pepper v. Thomas, 85 Ky. 539, 4 S. W. 297, 9 Ky. L. Rptr. 122 construing the statute, the court said: "The master was directed to ascertain the then value of the land, when it should have been its value at the time of the sale to Lee. The value of any permanent improvements which the purchaser or his vendee may have made cannot be taken into estimate. The land must be considered in the same condition as it was in when it was alienated by the husband and without amelioration or deterioration arising from the acts of the purchaser." On [**6]  the return of the case the deed from Crawford and wife to P. N. Tye should be filed.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

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