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Property Law Keyed to Cribbet
Kost v. Foster
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On December 11, 1897, John Kost and wife Catherine executed a warranty deed which stated that Ross Kost was to have a life estate in the property and at his death the property was to be given over in fee to his lawful children, and the lawful child of children of any deceased lawful child of Ross Kost to have their deceased parent’s share. The deed was filed in 1909. Ross Kost took possession of the real estate and lived there until his death in 1949. At the time of the 1897 deed Ross Kost had five living children. The other two, and one who lived only 13 days, were born after the deed. Appellant Oscar Kost, one of the seven children, was adjudged bankrupt in 1936 and the trustee conveyed Oscar Kost’s interest in the land in dispute to one Marshall Foster, Defendant and Counter-Plaintiff. After the death of Ross Kost, the seven children filed a suit to have the land partitioned. The complaint alleged that the seven children were the sole owners in common of the land, subject t o easements and the rights of Gilbert Kost as tenant in possession. The complaint further prayed that the trustee’s deed as to Oscas Kost’s right in the property be declared void and removed as a cloud on title, and that the real estate be partitioned. Defendant Marshall Foster answered the complaint that denied the trustee’s deed is void and arguing that Foster is the owner of the undivided one-seventh interest which Oscar Kost had under the deed of 1897. The lower court found in favor of the partition complaint as set forth in Foster’s counterclaim, and Oscar Kost appealed.
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