Kenney v. Parks

SMITH, C.

The suit was brought by the plaintiff, who is widow of the defendants’ intestate, to assert her claim to the two lots of land described in the first and third counts of the complaint,' and to an undivided half of the lot described in the second count, and for recovery of possession of the same. Judgment was rendered in her favor for an undivided half of the lot described in the third count, and against her as to the other half, and as to the lots described in the first and second counts. She appeals from so much of the judgment only as relates to the causes of action set out in the first and second counts, which alone, therefore, need be considered.

Upon the facts alleged in this part óf the complaint, all of which are found by the court to be true, and upon other facts found, the case presented for review is as follows:—

The plaintiff, being the owner of the lot and undivided half of a lot described in the first two counts of the complaint, signed, without consideration, two writings in the form of deeds, the one of date January 30, 1888, the other of date March 12, 1887, purporting respectively to convey them to Kenney, her husband; and at his request, and upon his repre

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sentation that under the laws of the state the deed would be of no validity until recorded (which both parties believed to be true), and on his promise that he would not have them recorded unless he should survive her, the deeds were placed by her in his possession. It was, at the same time, understood and agreed, as to each deed, that the instrument “should never have any effect as a conveyance” unless Kenny should survive his wife. The deeds were subsequently recorded by Kenney, whose promises not to record them were made without intention to keep them. The plaintiff did not learn of the record of the deeds until July 3, 1894, two days prior to Kenney’s death; nor did she learn that the law as to the effect of deeds before record was otherwise than as represented” to her by him until September, 1894. She remained in possession of the lands in question, and received the rents, issues,, and profits- therefrom, until July 5, 1894, the day of the death, of Kenney, when she was ousted by the defendants, the executors; and it is found by the court that she “was seised and possessed of the three parcels of land described in the complaint down to” that date. In the following May she commenced an action against the defendants to recover these and other lands, and for other purposes, and on October 14, 1896, under a judgment recovered therein, was placed in possession of the lands, remaining in possession until October 28, 1899, when, upon reversal of the judgment by this court, and the filing of the