Stephenson v. Stephenson, Pulaski, 1903

STEPHENSON v. STEPHENSON.

COURT OF APPEALS OF KENTUCKY

72 S.W. 742; 1903 Ky. LEXIS 335; 24 Ky. L. Rptr. 1873

March 5, 1903, Decided

PRIOR HISTORY:  [**1] 

Appeal from circuit court, Pulaski county. Action by Polly Stephenson against W. M. Stephenson. Judgment dismissing the petition, and plaintiff appeals.

DISPOSITION: Reversed.

COUNSEL: O. H. Waddle, for appellant.

J. W. Colyar and W. A. Morrow, for appellee.

JUDGES: SETTLE, J.

OPINION BY: SETTLE

OPINION

 [*742]  SETTLE, J. - The appellant, Polly Stephenson, widow of Jesse Stephenson, deceased, became, by the death of a son, Riley Stephenson, the owner, in fee simple, of an undivided one-half of several small and adjoining tracts of land in Pulaski county, the other half having descended to her husband. Jesse Stephenson, who was then living; but upon his death, which occurred at a later date, she became entitled to an estate for life in the whole of his undivided half of the lands mentioned, as a homestead, the same being worth less than $1,000. On October 6, 1900, she, by deed, conveyed the undivided one-half interest in the lands which had descended to her by the death of her son Riley to the appellee, W. M. Stephenson, also a son for the recited consideration of $500,  [*743]  the payment of which was acknowledged in the deed. Soon after the conveyance of the land to him, the appellee with his family, consisting of a wife and several children, moved on the land and into the house which had been occupied by his mother; he having built for her another small house near by, which she was expected to occupy. Unpleasantness soon arose between appellant and appellee, his wife, and children, which caused her to leave the place, and thereafter to institute this suit in the Pulaski circuit court.

It is alleged in the petition that, although the deed acknowledged the payment of the entire consideration of $500, only $20 of the same had in fact been paid, leaving due her $480, which appellant promised to pay, but failed to do so. It is also averred in the petition that appellant is entitled to a lien on the lands conveyed to secure the payment of the $480. The petition closes with a prayer for judgment in her favor against appellee for the $480 and interest, for the enforcement of her lien, and, finally, for "all proper, general, and equitable relief." The answer admits the execution of the deed, and that only $20 of the $500 consideration named therein has been paid, but denies that $500 is the true consideration, and avers that the real consideration is the service he has performed, and is yet to perform, in caring for and supporting the appellant, who is admitted to be very old and feeble. The reply denies the material allegations of the answer.

After some of appellee's depositions were taken, appellant offered to file an amended petition, in which she asks the cancellation of the deed made to appellee, and the restoration to her of the land, if the court should be of opinion that the averments of appellee's answer are true. The chancellor refused to permit the amendment to be filed, to which appellant excepted. The trial of the case resulted in a judgment dismissing the petition; hence this appeal.

While the evidence in the case is conflicting, it shows that, shortly after appellee and his family removed to his mother's house, disagreements arose between her and his wife and children, so serious and violent as to render it impossible for her to remain with or near them, or for either appellant or appellee to carry out the contract which he claims was the true consideration for the conveyance of the land to him. Appellant is shown to be 80 years old, and it is doubtless true that, in her dotage and feebleness, she was not altogether blameless in respect to the matters of disagreement that arose between her and the wife and children of the son. But it is shown by the evidence that much of the mistreatment accorded her by appellee's wife and children was cruel and wholly unjustifiable; and, besides, it is, further disclosed by the proof that appellee has failed to comply with his undertaking to care and support his mother. Upon the contrary, she has been neglected and abandoned by him and others of her own flesh and blood, whose duty it was and is, independent of compensation or reward, to see that she is maintained in comfort during the few remaining days of her life. It must, therefore, be taken for granted that, if the $500 mentioned in the deed was the true consideration for the conveyance, $480 of it has not been paid. Upon the other hand, if the true consideration was the appellee's undertaking to live with and support his mother during the remainder of her life, no part of this has been furnished or will be performed by him.

We are disposed to accept the theory that the true consideration for the conveyance to appellee was his agreement and undertaking to properly care for and support his mother, and we find from the evidence that he has not even in part complied with his undertaking; that there has been and is a failure of consideration, and the question to be determined is, what relief shall be allowed the appellant?

We think the chancellor erred not only in dismissing the petition, but that he also erred in refusing to let the amended petition be filed which was tendered by appellant, as the effect of such filing would be to make her petition as amended conform to the proof, and we think it was proper for her to ask of the chancellor the relief therein claimed, under the broad prayer of the original petition.

Section 90 of the Civil Code of Practice provides that "the petition must state facts which constitute a cause of action in favor of the plaintiff, and must demand the specific relief to which the plaintiff considers himself entitled, and may contain a general prayer for any other relief to which the plaintiff may appear to be entitled. If no defense be made the plaintiff cannot have judgment for any relief not specifically demanded; but if defense be made, he may have judgment for other relief under a prayer therefor."

In Lillard v. Brannin and Brand, 91 Ky 512, 16 S. W. 349, which was an action to enjoin Lillard from transferring certain stocks in his possession to others, the lower court, under plaintiff's prayer for general relief, rendered judgment in their behalf for the value of the stock in controversy, defendant declining to transfer it to them, and this court, in discussing that action of the circuit court, said: "The plaintiffs may pray for alternate relief if they desire; still we perceive no reason, where defense is made, why the prayers for general relief would not authorize a judgment for the value of the stock, if it belongs to the plaintiffs, and the defendant has disposed of it."

So, in view of the provision of the Code and the doctrine announced in the case supra, we feel authorized to say that the averments of the petition, as they will appear after the filing of the amendment upon return of the cause to the lower court, will entitle  [*744]  the appellant, under the prayer for general and equitable relief, to a rescission of the contract made with appellee, and a cancellation of the deed conveying the land to him.

We are of opinion, however, that appellee should be repaid the $20 which appellant admits receiving of him as a payment on the land, and upon her failing to return this sum he should be given a lien on the land in controversy for same. But no return should be made to him of the sum he expended in erecting the small house on appellant's land, as we are of the opinion that the cost of the house will not more than equal the rental value of the land during appellee's possession and use thereof, and the cost of the house may be regarded as set off by the rent or use of the land.

For the reasons indicated, the judgment of the lower court is reversed, and cause remanded, with directions to permit the amended petition to be filed, and for the entering of a judgment rescinding the land contract, and canceling the deed from appellant to appellee.