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| E, J. Picklesimer and Roscoe Vanover, both LOCKHART v. KENTLAND COAL & COKD of Pikeville, for appellant. CO.

Auxier, Harman & Francis, of Pikeville,

for appellee. (Court of Appeals of Kentucky. Dec. 20, 1918.) | 1. PLEADING C310EXHIBITS-EFFECT.

SETTLE, C. J. This action was brought An exhibit can never supply the omission of by the appellant, Elizabeth Lockhart, to ob an allegation essential to a statement of a tain the cancellation of foar deeds, in SO cause of action, but it may aid a defective alle far as they purport to convey her undivided gation, or, if it contradict the allegation of a one-sixth interest in all the mineral rights pleading, it will control that allegation or de- and minerals in and under two tracts of stroy it, unless expressly impeached or explain-land lying on Smith fork of Peters creek in ed by the facts stated in the pleading, under

Pike county, jointly owned by appellant and Civ. Code Prac. 88 120–128.

her brothers and sisters, but now in the 2. HUSBAND AND WIFE 78-TRANSFERS OF | possession of the appellee, Kentland Coal REAL ESTATE-PRENUPTIAL AGREEMENT. & Coke Company, a corporation created un

Ky. St. 88 506, 2127, 2128, do not abrogate | der the laws of West Virginia. The two an executory contract for the conveyance of tracts of land are properly described in the real estate made by woman prior to marriage, petition, and the mineral rights in the two and it can be enforced against her after mar-1 were

were conveyed separately by two of the

deeds attacked to the Northern Coal & Coke 3. CURTESY O 8-TRANSFERS OF REAL ESTATE Company, also a West Virginia corporation. - PRENUPTIAL EXECUTORY CONTRACT.

These two deeds were executed November A husband has no rights in land which the 22, 1902, by appellant and the other joint wife before marriage sold by executory con- owners of the lands; appellant's husband, tract, although she did not convey the legal title Elijah Lockhart, uniting therein. The third until after marriage.

deed attacked conveyed the mineral rights 4. HUSBAND AND WIFE 193 - TRANSFERS in the two tracts of land to the Mason Coal OF REAL ESTATE-INFANCY OF HUSBAND. & Coke Company, another West Virginia

A deed of a wife joined in by her minor bus- corporation, and was executed by the Northband was void as to her, although prior to the ern Coal & Coke Company April 25, 1907. marriage she had executed an executory con- By the fourth deed attacked, the Mason Coal tract to convey such land, under Ky. St. 88 506, & Coke Company on June 29, 1910, conveyed 2127.

the same mineral rights to the appellee, 5. HUSBAND AND WIFE w 198 - TRANSFERS

Kentland Coal & Coke Company. BY HUSBAND AND WIFE--ESTOPPEL.

The particular relief asked in the prayer Although a deed of the wife's property join

of the petition is that the several deeds reed in by a minor husband was void, the wife

ferred to be canceled in so far as they purwas estopped to set up its invalidity, where pri port to convey appellant's interest in the or to marriage she had executed an executory mineral rights in and under the two tracts contract to convey the property.

of land described therein; and, further, that 6. ESTOPPEL 97 – W10 MAY SET UP –

her undivided one-sixth interest in such minTRANSFERS OF REAL ESTATE.

eral rights be adjudged her property and Subsequent grantees may rely upon any

she be given the possession thereof. ground of estoppel against the original gran

The grounds alleged in the petition for tor that the original grantees could.

the relief sought are that as the appellant's

husband, Elijah Lockhart, was an infant, 7. ESTOPPEL 52–NATURE OF DOCTRINE.

only 18 years of age, when he united with The doctrine of estoppel is founded on the

her and the other joint owners of the Peters broad and just rule that one shall not defeat

creek lands in the two deeds of November his or her voluntary act, or even deny its va

22, 1902, conveying the mineral rights therelidity, to the prejudice of another.

in to the Northern Coal & Coke Company, 8. ESTOPPEL Om 108-DEMURRER RAISING DE- he was incompetent to contract or to unite FENSE.

in the conveyances, which, as to appellant's The question of estoppel may be raised by interest, rendered void those deeds and the demurrer, where all the facts out of which the deed subsequently made by the Northern estoppel arises already appear in a pleading of Coal &

Coal & Coke Company to the Mason Coal the party against whom or in whose favor the estoppel is urged, under Civ. Code Prac. $ 93.

& Coke Company and the deed from that

company to the appellee, Kentland Coal & Appeal from Circuit Court, Pike County.

Coke Company. Appellee filed a general

| demurrer to the petition, which the circuit Action by Elizabeth Lockhart against the court sustained, and, appellant declining to Kentland Coal & Coke Company. Judgment plead further, the petition was dismissed. for defendant, and plaintiff appeals. Af- From the judgment entered in conformity firmed.

to these rulings, the latter has appealed.

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Although the judgment appealed from does an allegation essential to the statement of not indicate the reasons inducing the ruling a cause of action. It may, however, aid a of the circuit court on the demurrer to the defective allegation, or even control or depetition, our reading of that pleading and stroy a positive one in contradiction of it; accompanying exhibits has readily enabled for, if an exhibit referred to and filed conus to comprehend them. Obviously, that tradicts an allegation of the pleading, the court's conclusion that the petition failed to exhibit will control the allegation, unless show appellant entitled to the relief sought the exhibit be expressly impeached or exwas based on the contradiction of its mate- plained by the facts stated in the pleading. rial allegations by the deeds of November Civil Code, $$ 120–128; Newman's Pleading 22, 1902, marked "1" and “2," respectively, & Practice, 8$ 204a-204c; Gardner v. Cont. filed with and made a part of the pleading, Ins. Co., 75 S. W. 283, 25 Ky. Law Rep. 426; both of which show that more than a year Hudson v. Scottish Union Ins. Co., 110 Ky. before the execution of the deeds, and while 722, 62 S. W. 513, 23 Ky. Law Rep. 116. she was an unmarried woman, appellant en-| [2] In view of the contradiction of the altered into certain written executory con- legations of the petition by the recitals tracts with two of appellee's vendors, where found in the two deeds filed with it as exby, for a consideration then agreed upon, hibits, it must be accepted as true that apshe sold and obligated herself to convey to pellant, prior to her marriage and prior to them all her interest in the mineral rights the execution of the deeds, had entered into and minerals upon and under the two tracts executory contracts for the sale of her inof land in question. It appears from the terest in the mineral rights in the lands derecitals in deed No. 1 that the first of these scribed in the petition and deeds; and, this contracts was as to the sale of the mineral being true, she will not be permitted to rerights in the larger of the two tracts of land cover such interest as here attempted. The and was made November 11, 1901, by appel- precise question here presented has never lant and her brothers and sisters, the other | been passed on in this jurisdiction, but in our joint owners of the land, with a corporation opinion it is not difficult of solution. Since known as the Ohio & Big Sandy Land As- the enactment in 1894 (Acts 1894, c. 76) of sociation, and that the title bond evidencing what is known as the "Weissinger Act,” a the contract was assigned by the latter to married woman of this state has been free the Northern Coal & Coke Company, the to contract, acquire, hold, dispose of propgrantee in deed No. 1. The second execu- erty, and sue and be súed in all respects as tory contract, as appears from the recitals a single woman, except that she cannot beof deed No. 2, was as to appellant's interest come surety for another, even her husband, in the mineral rights in the smaller of the or "make any executory contract to sell or two tracts of land, and was entered into convey or mortgage her real estate unless November 27, 1901, by appellant alone with her husband join in such contract.” Kenthe Empire Coal & Coke Company, which had tucky Statutes, $S 2127, 2128. While as depreviously acquired the interests of her clared by section 2127, supra, a married wobrothers and sisters in the mineral rights of man cannot make an executory contract to the smaller tract. The title bond evidenc- sell, convey, or mortgage her real estate ing the contract between appellant and the without her husband's joining in the conEmpire Coal & Coke Company, like that exe-tract, and cannot, as further declared by cuted to it by her brothers and sisters, was Kentucky Statutes, $ 506, convey her real duly assigned to the Northern Coal & Coke estate unless the husband unite with her in Company. It will thus be seen that by the a joint deed for that purpose, or shall have assignments referred to the Northern Coal first made a deed, followed by a separate & Coke Company became the beneficiary of one from her, there is nothing in any of the each of the executory contracts to which sections referred to that declares the wife appellant was a party; hence the recitals'in shall not by deed, in which the husband does the two deeds of November 11, 1901, from not join, convey her real estate sold by execappellant and her brother and sisters to that utory contract before her marriage. The company, that they conveyed the interests restriction imposed by section 2127 upon the of the grantors to the mineral rights in the right of the wife to make an executory contwo tracts of land in compliance with the tract for the sale or conveyance of her real covenants of the title bonds; and we have estate, unless her husband join in such conpreviously stated how the title to the min tract, manifestly does not refer to an execueral rights in question was finally conveyed tory contract made by her before marriage, to appellee by successive deeds from the but only to such a contract made after or later owners.

during marriage. It is clear that neither [1] In determining whether the demurrer the refusal of the husband to join the wife to the petition should have been sustained, in a deed made to carry out a valid executhe recitals in the two deeds referred to must tory contract for the sale of her real estate be considered. They are two of the convey entered into by her before their marriage, ances denounced and sought to be set aside. nor her reliance upon the disability of coverAn exhibit can never supply the omission of ture, would abrogate the contract or prevent

a court of equity from decreeing its specific for the specific performance of a contract of performance at the suit of the vendee; and, sale of the land the title to which was inif the refusal of the husband to join in the volved in Phillips v. Hoskins, the sale being deed would not relieve the wife of the per one made by the wife after her second marformance of the executory contract, how riage. The opinion merely follows that in could his infancy at the time of uniting with Phillips v. Hoskins and adhered to all the the wife in the execution of such a deed conclusions therein expressed. But conceddo so?

ing that the infancy of appellant's husband [3-6] Appellant's husband is not joining in rendered void, as to her, the two deeds in the attack upon the deeds of which she com- which he united with her and the other joint plains, either on the ground that he was an owners to convey the mineral rights in the infant when they were executed, or other- Pike county lands to the grantee named wise. Indeed, he is not a party to the ac- therein, we are nevertheless compelled to tion. In fact, he would take no present or hold that appellant is estopped, by the execfuture interest in the mineral rights the utory sales she made of her interest in the deeds convey, if they were canceled; for the mineral rights before her marriage, to mainsale of those rights by the executory con- | tain this action for the cancellation of the tract made by appellant prior to their mar- l deeds in question or those subsequently exeriage would, under the laws of this state, cuted whereby the title to the property condeprive him of even the potential right to veyed was vested in the appellee; and as, take at the death of appellant, if he should

by reason of the several deeds referred to then be living, any interest in them. Under

and its present ownership of the property, the present statutes of this state respecting

the latter became a privy to the original or the property rights of husband and wife,

executory contracts, it is as much entitled the surviving husband takes at her death only such interest in her real estate as would

as would be its remote vendors, the first go to her in his real estate, if she survives

beneficiaries of those contracts, to rely upon him, viz., a life estate in one-third in value

any ground of estoppel that may arise out of the whole. In the following cases, it was

of its performance or nonperformance. held that the wife is not entitled to dower

[7] It is sufficient to say of the doctrine in the lands of which the husband was not

of estoppel that it is founded on the broad beneficially seized during the coverture; and

and just rule that one shall not defeat his that she cannot have dower in land which

or her voluntary act, or even deny its validthe husband had, before the marriage, sold

ity, to the prejudice of another. A married by executory contract, although he did not

woman may be estopped the same as a single convey the legal title to the purchaser until

woman or a man, where permission of the after he married. Fontaine v. Dunlap, 82

assertion of her claim would operate as a Ky, 321; Gully v. Ray, 18 B. Mon. 107; Old

fraud. Overcast v. Lawrence, 141 Ky, 25, ham v. Sale, 1 B. Mon, 76; Gaines v. Gaines,

131 S. W. 1029; Myrick v. Hambree's Adm'r, 9 B. Mon. 295, 48 Am. Dec. 425. Manifest

136 Ky. 110, 123 S. W. 668; Ayre & Lord Tie ly, the doctrine applied to the wife by the

Co. v. Baker, 138 Ky, 494, 128 S. W. 316;

Herman on Estoppel, vol. 2, § 1103. Whatcases, supra, is equally applicable to the husband. We are constrained to accept appel

ever may be the rule concerning the formalilant's contention that the two deeds in which

ties needed to bind married women, there is appellant's husband joined with her to con

no doubt they may be estopped by their devey her interest in the mineral rights in the

liberate conduct, as well as any one else. It Pike county lands to the Northern Coal &

seems to us that a stronger case for the Coke Company, because of his then infancy,

application of the doctrine of estoppel than

the one we here have cannot be found. In were and are void as to her, for it seems to

the absence of the deeds sought to be canhave been so held as to a similar deed in Phillips v. Hoskins, 128 Ky. 371, 108 S. W. 283, 33

çeled, a court of equity could, notwithstand

ing her marriage and the infancy of her husKy. Law Rep. 378, and Mueller v. Ragsdale,

band, have compelled appellant and her hus158 Ky412, 165 S. W. 401. While it ap

band, at the suit of the vendees, to perforin pears from the opinion in the first of these

by the execution of a proper deed through cases that there was a disaffirmance of the

the commissioner, the previously made execdeed by the husband after attaining his ma

utory contracts for the sale of her interest jority by his act in joining with his wife

in the mineral rights which the deeds, sought in a mortgage of the land conveyed by the deed, and the conclusion that the deed was

to be canceled, attempted to convey. Therevoid was in part rested upon this disaffirm

fore the mere cancellation of the deeds on ance, a careful reading of the opinion as a

| account of the infancy of appellant's huswhole will demonstrate that, while it says

| band at the time of their execution would the deed was only voidable as to the hus- not relieve her of the obligation to convey band, it also seems to have declared it by her interest in the mineral rights imposed reason of the husband's infancy alone void upon her by the executory contract made as to the wife.

when she was admittedly sui juris. This Mueller v. Ragsdale, supra, was an action situation estops appellant to demand the

relief prayed in the petition, and the estop! In 8 Enc. Pleading & Practice, 9, we find pel was properly allowed to prevail.

the rule thus stated; [8] It is insisted, however, for appellant, “Where facts sufficient to constitute an esthat the defense of estoppel cannot be made toppel appear in the previous pleadings, the by demurrer, but must be pleaded; and that, estoppel need not be especially pleaded, but as this was not done by answer, the circuit may be taken advantage of by demurrer." court erred in sustaining the demurrer to Hanson v. Buckner, 4 Dana, 251, 29 Am. Dec. the petition. This contention cannot be sus 401. tained. It is the general rule that an es

As all the facts constituting the estoppel toppel must be pleaded, but this rule does

relied on by the appellee in this case were not obtain where all the facts out of which

presented by the petition and exhibits, and the estoppel arises already appear in a plead

the recitals of the exhibits particularly showing of the party against whom or in whose

ing the executory contracts made by appelfavor the estoppel is urged. In such case,

lant before her marriage must, to the exthe question of estoppel may be raised by

tent they contradict the allegations of the demurrer. Civil Code, $ 93. In Herman on

petition, control, the entire question of esEstoppel, vol. 2, & 1276, it is said:

toppel was properly raised by demurrer and “When the estoppel already appears from the

correctly determined by the judgment suspleadings on either side, it need not be set out taining the demurrer and dismissing the peagain formally of record, and the proper course | tition. is to demur without going further."

| Wherefore the judgment is affirmed.

| left to Mrs. M. R. E. Stuart absolutely under BARRON et al v. STUART et al. (No. 237.) the terms of the will.

J. W. Stuart was born in Greene county, (Supreme Court of Arkansas. Nov. 11, 1918. Concurring Opinion, Dec. 23, 1918.

Ark., and lived there all his life. He was On Rehearing Dec. 16, 1918.)

68 years old when he died, and he and M.

R. E. Stuart had lived together as husband 1. TRUSTS 9212 - CONSTRUCTIVE TRUST and wife for 48 years. He left surviving PAROL.

him five sons, two daughters, and the chilKirby's Dig. $ 3666, providing that trust

666, providing that trust | dren of three deceased daughters. Neither can only be created by writing, refers only to

J. W. Stuart nor his wife, M. R. E. Stuart,

w express trusts, and has no reference to trusts

were able to read or write; but J. W. Stuart ex maleficio.

had a strong mind, and possessed to a mark. 2. TRUSTS C110_TRUSTS EX MALEFICIO—

ed degree the ability to make money. At PROOF.

the date of his death he possessed property Parties seeking to prove a trust ex male

variously estimated from $111,000 to $250,ficio must establish the same by clear and satis

000. His property consisted of a number factory evidence.

of improved farms, a large tract of wild land, 3. TRUSTS 96-TRUSTS EX MALEFICIO-NE

a large number of cattle and horses, a great CESSITY FOR PROMISE.

quantity of corn and cotton, also some wheat, Where a trust ex maleficio is based on a duebills. promissory notes, and a large promise, the promise need not be expressly made, for actual co-operation or silent acquies

amount of money deposited with various cence may have the same effect.

banks and mercantile establishments in the

cities of Paragould and Jonesboro, Ark. 4. TRUSTS 110 - TRUSTS Ex MALEFICIO —

During the last 8 or 10 years of his life, his WILLS-FRAUD-SUFFICIENCY OF EVIDENCE.

oldest son, J. A. Stuart, signed his name to In an action to establish a trust, clear and

checks and looked after his business affairs satisfactory evidence held to establish that a decedent was induced by the proinise of defend

generally. ant, to devise all his property to her, with the In July, 1916, J. W. Stuart was kicked by understanding that the property was to be di- a mare, and died in about 11 days thereaftvided among children in a certain manner. | er as a result of his injuries. The mare 5. Trusts (110_TRUSTS Ex MALEFICIO—

kicked him on Tuesday, the 18th day of PROOF.

July, 1916, and he died on Friday, the 28th In a suit to establish a trust in property

day of July following. Two days after J. devised, evidence held to show that testator de- / W. Stuart was hurt, his son, J. A. Stuart, clared bis intention of dividing his money and went to a justice of the peace and brought other personal property among all his children, him to the house for the purpose of preparincluding his grandchildren, and devised the ling and acknowledging a deed from his faproperty to his wife, with the understanding

ther to Ab Stuart, his youngest son. On his that it be so divided.

way up there the justice of the peace met On Rehearing.

up with the attending physician, who told

him that J. W. Stuart was fatally injured PROCURING DEVISE.

and that he ought to make a will. The jusIf a testator is induced to make a will by tice of the peace prepared the deed and took a promise, express or implied, on the part of the acknowledgment of J. W, Stuart thereto, the legatee that he will devote his legacy to al as requested. He was then asked to prepare certain trust, a secret trust is created, and

another deed, and declined, because he had equity will apply the property obtained in ac

no more blank deeds. The attending physicordance with his promise notwithstanding Kirby's Dig. $ 3666.

cian also told J. A. Stuart that his father

was not likely to get well. On Thursday Appeal from Greene Chancery Court; night following the injury, the attending Archer Wheatley, Chancellor.

physician told J. A. Stuart that he had lost Suit by Laura Barron and others against

all hope of his father recovering from his J. A. Stuart and others. Decree for de

injuries. The wife of J. W. Stuart was in fendants, and plaintiffs appeal. Reversed

constant attendance at his bedside from the

time he was injured until he died. His chiland remanded.

dren and grandchildren, a brother, and other Appellants, who were the daughters and relatives were there most of the time after grandchildren of J. W. Stuart, deceased, he received his injuries until he died. It brought this suit in equity against appellees, was late Thursday night when the attendwho were the sons and the widow of J. W. ing physician told J. A. Stuart that his faStuart, deceased, and the object of the suit ther could not recover. J. A. Stuart informwas to establish a trust in certain property ed his father and the other children around devised by said J. W. Stuart to his wife, M. his bedside that he could not recover. J. W. R. E. Stuart. Appellees answered, denying Stuart broke down and cried, when he was the trust, and averring that the property was told that there was no chance for him to

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