October 10, 2012

Owen v. Lily-Jellico Coal Co., Laurel, 1911

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Owen v. Lily-Jellico Coal Co.

COURT OF APPEALS OF KENTUCKY

143 Ky. 239; 136 S.W. 195; 1911 Ky. LEXIS 364

April 19, 1911, Decided

PRIOR HISTORY:  [**1]  Appeal from Laurel Circuit Court. 

DISPOSITION: Judgment affirmed.

COUNSEL: H. C. CLAY for appellant.

GEORGE B. BROCK and J. N. SHARP for appellee. 

JUDGES: WILLIAM ROGERS CLAY, COMMISSIONERS. 

OPINION BY: WILLIAM ROGERS CLAY 

OPINION

 [*240]  OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER--Affirming.

On December 15, 1907, appellant Norma Owen, his sister, Effie, and their parents, R. D. Owen, and wife, by joint deed of general warranty, conveyed to L. B. McHargue a tract of land located in Laurel county, Kentucky. On August 31, 1907, McHargue conveyed the same tract to appellee, Lily-Jellico Coal Company. Claiming that he was under twenty-one years of age at the time he made the deed to McHargue on December 15, 1907, the appellant, on March 12, 1909, brought this action to recover an undivided one-half interest in said tract of land, to cancel the deed made by him, and for a partition of the land between him and appellee. From a judgment denying him the relief prayed for, he prosecutes this appeal.

One of the grounds upon which the chancellor based his judgment is that he was not satisfied, from the proof, that appellant was in fact under age when the deed was made. Appellant, who was born in [**2]  Kansas, testified as follows: "I was born in 1887, April 20th is the way my age is set down in the Bible." Robert Elliott testified that he thought he knew appellant's age; that appellant was born in Anderson county, Kansas, in April, 1887 some time; that he was able to fix the date because his wife and appellant's mother were confined about the same time.

For appellee it was shown that, a few months prior to the conveyance in question, appellant's father wanted to have transferred to appellant a certain account. For that purpose they approached O. W. Black, who is now one of appellee's officers. He objected to transferring the account, because he was afraid Normie Owen was not twenty-one years of age. R. D. Owen, Normie's father, stated in his presence that Normie was of age. Witness then turned to Normie and asked him if he was of age; whereupon Normie replied, "I am twenty-one years old." On Normie's making this statement the account  [*241]  was transferred from R. D. Owen to Normie Owen. This conversation also took place in the presence of F. J. Black, secretary and manager of the Lily-Jellico Coal Company at the time the deed was made.

When we consider the fact that neither [**3]  appellant's father nor mother testified; that the Bible which he claims shows the date of his birth, was not introduced in evidence, and that all he knew about it was what the Bible said; that the only other evidence was the testimony of appellant's uncle, who bases his opinion of appellant's age upon the fact that he was born about the same time that one of his children was born, in connection with the representation of appellant and of his father made in his presence, that even some months prior to the execution of the deed he was twenty-one years of age, we are not disposed to disturb the finding of the chancellor.

Judgment affirmed.

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