Whaley v. Whaley , 1868 Ky. LEXIS 413 ( 1868 )

Opinion oe the Court by

Judge Hardin:

The judgment of the circuit court cancelling the deed from Benjamin Whaley and wife to B. L. Whaley was rendered in May, 1863, and was on the appeal of the defendants reversed by this court in October, 1864; it appears by the amended pleadings filed since the return of the cause to the circuit court, and by the evidence that shortly after said judgment of the circuit court was rendered and before the appeal was prosecuted therefrom, the defendant May E. Moffatt, late Whaley, and her husband, she having intermarried with William Moffatt, abandoned the possession of the land in controversy, leaving said Benjamin Whaley and wife in the occupancy thereof, and that Moffatt, and wife, after residing in the vicinity of the land until in July, 1865, removed to the state of Indiana. Said Benjamin Whaley appears to have removed from the land. But he held the possession of it hy a tenant until his death, which occurred in 1865 and that said Moffatt and wife did not maintain or have the care of said Whaley and wife after their removal from the land, nor does it appear that after the time said Benjamin and wife as the survivor of them would permit them to do so, although that Moffatt and wife was by an amended answer filed in May, 1860, expressed their willingness to do so.

The judgment dismissing the plaintiffs’ petition and from which this appeal is prosecuted, was rendered in May, 1866, upon the execution by Moffatt and wife with surety approved by the court, of a covenant that they wonld. support and maintain and provide for the plaintiif Jane "Whaley pursuant to the stipulations of said deed.

Ward, for appellants.

We are of the opinion that by the removal of the appellees from the land and subsequently from the state, and their failure to provide for Whaley and wife and the survivor of them according to the stipulations of the deed, the title reverted to the grantors, as provided for in the deed, in the event of a failure on the part of the grantees «s his representatives to comply with the condition of the deed, and the appellants were therefore entitled to the relief sought by diem.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.