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E. J. Picklesimer and Roscoe Vanover, both

LOCKHART v. KENTLAND COAL & COKE of Pikeville, for appellant.

CO.

(Court of Appeals of Kentucky. Dec. 20, 1918.)

1. PLEADING

310-EXHIBITS-EFFECT.

An exhibit can never supply the omission of an allegation essential to a statement of a cause of action, but it may aid a defective allegation, or, if it contradict the allegation of a pleading, it will control that allegation or destroy it, unless expressly impeached or explained by the facts stated in the pleading, under Civ. Code Prac. §§ 120-128.

2. HUSBAND AND WIFE 78-TRANSFERS OF REAL ESTATE-PRENUPTIAL AGREEMENT.

Ky. St. §§ 506, 2127, 2128, do not abrogate an executory contract for the conveyance of real estate made by woman prior to marriage, and it can be enforced against her after marriage.

3. CURTESY 8-TRANSFERS OF REAL ESTATE -PRENUPTIAL EXECUTORY CONTRACT.

A husband has no rights in land which the wife before marriage sold by executory contract, although she did not convey the legal title until after marriage.

4. HUSBAND AND WIFE

193-TRANSFERS

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Auxier, Harman & Francis, of Pikeville, for appellee.

SETTLE, C. J. This action was brought by the appellant, Elizabeth Lockhart, to obtain the cancellation of four deeds, in so far as they purport to convey her undivided one-sixth interest in all the mineral rights and minerals in and under two tracts of land lying on Smith fork of Peters creek in Pike county, jointly owned by appellant and her brothers and sisters, but now in the possession of the appellee, Kentland Coal & Coke Company, a corporation created under the laws of West Virginia. The two tracts of land are properly described in the petition, and the mineral rights in the two were conveyed separately by two of the deeds attacked to the Northern Coal & Coke Company, also a West Virginia corporation. These two deeds were executed November 22, 1902, by appellant and the other joint owners of the lands; appellant's husband, Elijah Lockhart, uniting therein. The third deed attacked conveyed the mineral rights in the two tracts of land to the Mason Coal & Coke Company, another West Virginia corporation, and was executed by the Northern Coal & Coke Company April 25, 1907. By the fourth deed attacked, the Mason Coal & Coke Company on June 29, 1910, conveyed the same mineral rights to the appellee, Kentland Coal & Coke Company.

The particular relief asked in the prayer of the petition is that the several deeds referred to be canceled in so far as they purport to convey appellant's interest in the mineral rights in and under the two tracts of land described therein; and, further, that her undivided one-sixth interest in such mineral rights be adjudged her property and she be given the possession thereof.

The grounds alleged in the petition for the relief sought are that as the appellant's husband, Elijah Lockhart, was an infant, only 18 years of age, when he united with her and the other joint owners of the Peters creek lands in the two deeds of November 22, 1902, conveying the mineral rights therein to the Northern Coal & Coke Company,

8. ESTOPPEL 108-DEMURRER RAISING DE- he was incompetent to contract or to unite FENSE.

The question of estoppel may be raised by demurrer, where all the facts out of which the estoppel arises already appear in a pleading of the party against whom or in whose favor the estoppel is urged, under Civ. Code Prac. § 93.

Appeal from Circuit Court, Pike County. Action by Elizabeth Lockhart against the Kentland Coal & Coke Company. Judgment for defendant, and plaintiff appeals. Affirmed.

in the conveyances, which, as to appellant's interest, rendered void those deeds and the deed subsequently made by the Northern Coal & Coke Company to the Mason Coal & Coke Company and the deed from that company to the appellee, Kentland Coal & demurrer to the petition, which the circuit Coke Company. Appellee filed a general court sustained, and, appellant declining to plead further, the petition was dismissed. From the judgment entered in conformity to these rulings, the latter has appealed.

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[2] In view of the contradiction of the allegations of the petition by the recitals found in the two deeds filed with it as exhibits, it must be accepted as true that appellant, prior to her marriage and prior to the execution of the deeds, had entered into executory contracts for the sale of her interest in the mineral rights in the lands described in the petition and deeds; and, this being true, she will not be permitted to recover such interest as here attempted. The

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, §§ 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 entered into certain written executory contracts with two of appellee's vendors, whereby, for a consideration then agreed upon, she sold and obligated herself to convey to them all her interest in the mineral rights and minerals upon and under the two tracts of land in question. It appears from the recitals in deed No. 1 that the first of these contracts was as to the sale of the mineral rights in the larger of the two tracts of land and was made November 11, 1901, by appel-precise question here presented has never lant and her brothers and sisters, the other joint owners of the land, with a corporation known as the Ohio & Big Sandy Land Association, and that the title bond evidencing the contract was assigned by the latter to the Northern Coal & Coke Company, the grantee in deed No. 1. The second executory contract, as appears from the recitals of deed No. 2, was as to appellant's interest in the mineral rights in the smaller of the two tracts of land, and was entered into November 27, 1901, by appellant alone with the Empire Coal & Coke Company, which had previously acquired the interests of her brothers and sisters in the mineral rights of the smaller tract. The title bond evidencing the contract between appellant and the Empire Coal & Coke Company, like that executed to it by her brothers and sisters, was duly assigned to the Northern Coal & Coke Company. It will thus be seen that by the assignments referred to the Northern Coal & Coke Company became the beneficiary of each of the executory contracts to which appellant was a party; hence the recitals in the two deeds of November 11, 1901, from appellant and her brother and sisters to that company, that they conveyed the interests of the grantors to the mineral rights in the two tracts of land in compliance with the covenants of the title bonds; and we have previously stated how the title to the mineral rights in question was finally conveyed to appellee by successive deeds from the later owners.

[1] In determining whether the demurrer to the petition should have been sustained, the recitals in the two deeds referred to must be considered. They are two of the conveyances denounced and sought to be set aside. An exhibit can never supply the omission of

been passed on in this jurisdiction, but in our opinion it is not difficult of solution. Since the enactment in 1894 (Acts 1894, c. 76) of what is known as the "Weissinger Act," a married woman of this state has been free to contract, acquire, hold, dispose of property, and sue and be sued in all respects as a single woman, except that she cannot become surety for another, even her husband, or "make any executory contract to sell or convey or mortgage her real estate unless her husband join in such contract." Kentucky Statutes, §§ 2127, 2128. While as declared by section 2127, supra, a married woman cannot make an executory contract to sell, convey, or mortgage her real estate without her husband's joining in the contract, and cannot, as further declared by Kentucky Statutes, § 506, convey her real estate unless the husband unite with her in a joint deed for that purpose, or shall have first made a deed, followed by a separate one from her, there is nothing in any of the sections referred to that declares the wife shall not by deed, in which the husband does not join, convey her real estate sold by executory contract before her marriage. The restriction imposed by section 2127 upon the right of the wife to make an executory contract for the sale or conveyance of her real estate, unless her husband join in such contract, manifestly does not refer to an executory contract made by her before marriage, but only to such a contract made after or during marriage. It is clear that neither the refusal of the husband to join the wife in a deed made to carry out a valid execu tory contract for the sale of her real estate entered into by her before their marriage, nor her reliance upon the disability of coverture, would abrogate the contract or prevent

a court of equity from decreeing its specific performance at the suit of the vendee; and, if the refusal of the husband to join in the deed would not relieve the wife of the performance of the executory contract, how could his infancy at the time of uniting with the wife in the execution of such a deed do so?

[3-6] Appellant's husband is not joining in the attack upon the deeds of which she complains, either on the ground that he was an infant when they were executed, or otherwise. Indeed, he is not a party to the action. In fact, he would take no present or future interest in the mineral rights the deeds convey, if they were canceled; for the sale of those rights by the executory contract made by appellant prior to their marriage would, under the laws of this state, deprive him of even the potential right to take at the death of appellant, if he should then be living, any interest in them. Under the present statutes of this state respecting the property rights of husband and wife,

for the specific performance of a contract of sale of the land the title to which was involved in Phillips v. Hoskins, the sale being one made by the wife after her second marriage. The opinion merely follows that in Phillips v. Hoskins and adhered to all the conclusions therein expressed. But conceding that the infancy of appellant's husband rendered void, as to her, the two deeds in which he united with her and the other joint Pike county lands to the grantee named owners to convey the mineral rights in the therein, we are nevertheless compelled to hold that appellant is estopped, by the executory sales she made of her interest in the mineral rights before her marriage, to maintain this action for the cancellation of the deeds in question or those subsequently executed whereby the title to the property conveyed was vested in the appellee; and as, by reason of the several deeds referred to and its present ownership of the property, the latter became a privy to the original or executory contracts, it is as much entitled

as would be its remote vendors, the first beneficiaries of those contracts, to rely upon any ground of estoppel that may arise out of its performance or nonperformance.

the surviving husband takes at her death only such interest in her real estate as would go to her in his real estate, if she survives him, viz., a life estate in one-third in value of the whole. In the following cases, it was 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; Oldfraud. 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 cases, supra, is equally applicable to the husband. We are constrained to accept appellant's contention that the two deeds in which appellant's husband joined with her to convey her interest in the mineral rights in the Pike county lands to the Northern Coal &

Coke Company, because of his then infancy, were and are void as to her, for it seems to have been so held as to a similar deed in Phil

Co. v. Baker, 138 Ky, 494, 128 S. W. 346; Herman on Estoppel, vol. 2, § 1103. Whatever may be the rule concerning the formalities needed to bind married women, there is no doubt they may be estopped by their deliberate conduct, as well as any one else. It seems to us that a stronger case for the

In

application of the doctrine of estoppel than the absence of the deeds sought to be canthe one we here have cannot be found. celed, a court of equity could, notwithstandband, have compelled appellant and her husing her marriage and the infancy of her husband, at the suit of the vendees, to perform by the execution of a proper deed through the commissioner, the previously made exec

lips v. Hoskins, 128 Ky. 371, 108 S. W. 283, 33 Ky. Law Rep. 378, and Mueller v. Ragsdale, 158 Ky. 412, 165 S. W. 401. While it appears from the opinion in the first of these cases that there was a disaffirmance of the deed by the husband after attaining his majority by his act in joining with his wife utory contracts for the sale of her interest in a mortgage of the land conveyed by the in the mineral rights which the deeds, sought 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 whole will demonstrate that, while it says the deed was only voidable as to the husband, it also seems to have declared it by reason of the husband's infancy alone void as to the wife.

account of the infancy of appellant's husband at the time of their execution would not relieve her of the obligation to convey her interest in the mineral rights imposed upon her by the executory contract made 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 estoppel was properly allowed to prevail.

[8] It is insisted, however, for appellant, that the defense of estoppel cannot be made by demurrer, but must be pleaded; and that, as this was not done by answer, the circuit court erred in sustaining the demurrer to the petition. This contention cannot be sustained. It is the general rule that an estoppel must be pleaded, but this rule does not obtain where all the facts out of which the estoppel arises already appear in a plead ing of the party against whom or in whose favor the estoppel is urged. In such case, the question of estoppel may be raised by demurrer. Civil Code, § 93. In Herman on Estoppel, vol. 2, § 1276, it is said:

"When the estoppel already appears from the pleadings on either side, it need not be set out again formally of record, and the proper course is to demur without going further."

In 8 Enc. Pleading & Practice, 9, we find the rule thus stated;

"Where facts sufficient to constitute an estoppel appear in the previous pleadings, the estoppel need not be especially pleaded, but may be taken advantage of by demurrer." Hanson v. Buckner, 4 Dana, 251, 29 Am. Dec.

401.

As all the facts constituting the estoppel relied on by the appellee in this case were presented by the petition and exhibits, and the recitals of the exhibits particularly showing the executory contracts made by appellant before her marriage must, to the extent they contradict the allegations of the petition, control, the entire question of estoppel was properly raised by demurrer and correctly determined by the judgment sustaining the demurrer and dismissing the petition.

Wherefore the judgment is affirmed.

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left to Mrs. M. R. E. Stuart absolutely under the terms of the will.

J. W. Stuart was born in Greene county, Ark., and lived there all his life. He was 68 years old when he died, and he and M. R. E. Stuart had lived together as husband and wife for 48 years. He left surviving

him five sons, two daughters, and the children of three deceased daughters. Neither J. W. Stuart nor his wife, M. R. E. Stuart, were able to read or write; but J. W. Stuart had a strong mind, and possessed to a marked degree the ability to make money. At the date of his death he possessed property variously estimated from $111,000 to $250,His property consisted of a number of improved farms, a large tract of wild land, a large number of cattle and horses, a great quantity of corn and cotton, also some wheat, duebills, promissory notes, and а large amount of money deposited with various

000.

banks and mercantile establishments in the cities of Paragould and Jonesboro, Ark. During the last 8 or 10 years of his life, his oldest son, J. A. Stuart, signed his name to checks and looked after his business affairs generally.

In July, 1916, J. W. Stuart was kicked by a mare, and died in about 11 days thereafter as a result of his injuries. The mare kicked him on Tuesday, the 18th day of July, 1916, and he died on Friday, the 28th day of July following. Two days after J. W. Stuart was hurt, his son, J. A. Stuart, went to a justice of the peace and brought him to the house for the purpose of preparing and acknowledging a deed from his father to Ab Stuart, his youngest son. On his way up there the justice of the peace met up with the attending physician, who told him that J. W. Stuart was fatally injured and that he ought to make a will. The justice of the peace prepared the deed and took the acknowledgment of J. W. Stuart thereto, as requested. He was then asked to prepare another deed, and declined, because he had no more blank deeds. The attending physician 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 defendants, and plaintiffs appeal. Reversed and remanded.

Appellants, who were the daughters and grandchildren of J. W. Stuart, deceased, brought this suit in equity against appellees, who were the sons and the widow of J. W. Stuart, deceased, and the object of the suit was to establish a trust in certain property devised by said J. W. Stuart to his wife, M. R. E. Stuart. Appellees answered, denying the trust, and averring that the property was

injuries. The wife of J. W. Stuart was in constant attendance at his bedside from the time he was injured until he died. His children and grandchildren, a brother, and other relatives were there most of the time after he received his injuries until he died. It was late Thursday night when the attending physician told J. A. Stuart that his father could not recover. J. A. Stuart informed his father and the other children around his bedside that he could not recover. J. W. Stuart broke down and cried, when he was told that there was no chance for him to

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