142 S.W.2d 975 | Ky. Ct. App. | 1940
Reversing.
In 1909 Jack Barnett and Sarah Barnett, husband and wife, conveyed to their children, James Barnett, Winfield Barnett and Manda B. Robinson, a tract of land owned by the grantor, Jack Barnett, containing about 135 acres for the recited consideration of $1 and for love and affection and the further consideration that the three grantees pay to Gracie Hamilton $100 when she became 21 years of age, each to pay one third of such sum, but if she should die before attaining that age the grantees would be relieved of that obligation. The deed contained the following provision:
"But is expressly understood that the parties of the first part is to keep full possession of said land as long as either one lives and is to have full control of said land for their natural lifetime and title does not pass until the death of both parties, * * *".
Jack Barnett died shortly after the execution of this deed but the widow continued to live upon the land until her death in the latter part of 1938. James Barnett died in 1931. Previous to his death Manda B. Robinson conveyed to him and to Winfield Barnett jointly all her interest in the farm. After the death of Sarah Barnett the heirs of James Barnett brought this suit against Winfield Barnett for sale of the land and a division of the proceeds alleging that the tract was jointly owned by their father and Winfield Barnett; that they jointly inherited a one-half undivided interest therein from their father. Later the widow of James Barnett was made party plaintiff. *712
By counterclaim and cross petition Winfield Barnett traversed the allegations of the petition adverse to him and alleged that after the conveyance from their sister and prior to the year 1919 he and James Barnett divided the land between themselves, ran a division fence between their respective portions and agreed that the portion of the land lying generally on the western side of the division line so agreed upon should belong to the defendant and the land on the other side thereof should belong to James Barnett; that pursuant to such agreement defendant held and owned the tract of land which it was agreed he should take and which was described in the answer subject only to the life estate of Sarah Barnett and that neither the widow nor heirs of James Barnett had any interest therein whatsoever; that each of the parties to the agreement took charge of, managed and controlled together with the life tenant his respective portion of the division allotment; that for more than 15 years defendant had held, owned and been in the possession of the vested remainder, peaceably, actually, adversely, etc., and that by reason thereof became the sole and absolute owner in fee simple of the tract allotted to him by the agreement. He prayed that he be adjudged the owner in fee simple of all the tract described in the answer and that his title be quieted against claim of all parties.
By reply plaintiffs traversed the affirmative allegations of the answer and in an amended petition among other things alleged in substance that under the quoted provisions of the deed from Jack Barnett and wife to their children neither of the grantees were given or took any interest in the land or any control thereof and acquired no title, possession of, or interest therein until after the death of both grantors.
On final hearing the chancellor adjudged that prior to the year 1918 James Barnett and Winfield Barnett, with the consent and approval of their mother, divided the land formerly owned by Jack Barnett and established a dividing line, built a fence thereon and agreed that the tract lying on the western side of the division should belong to Winfield Barnett and that on the eastern side to James Barnett, subject to the life estate of their mother; that Winfield Barnett from the time of the establishment of the division line, together with *713 his mother, kept, managed, controlled and held that portion described in his answer, etc., continuously for more than 15 years by adverse possession and that he was the absolute owner in fee simple thereof; that none of the parties had any interest whatsoever therein and that Winfield Barnett's title thereto be quieted. Plaintiffs are appealing.
It is first argued in effect by counsel for appellants that none of the children of Jack Barnett and wife took any title or interest whatever under the deed from their parents until the death of the mother and that the quoted provision in the deed rendered it testamentary in character. In Phillips v. Thomas Lumber Company, 94, Ky. 445, 22 S.W. 652, 15 Ky. Law Rep. 219, 42 Am. St. Rep. 367, the court had for construction a similar provision in a deed and under the holding in that case it is manifest that Jack Barnett and wife divested themselves of all title in and to the land except a life estate and their children took a vested remainder.
It is further argued by counsel for appellants in substance (a) that an oral agreement for partition or division of land by joint owners is void under the statutes of fraud; (b) that one remainderman cannot hold adversely as against another; and (c) that if it were otherwise the evidence is not sufficient to support appellees' claim of title by adverse possession.
It seems to be well settled that an oral contract for the partition of lands comes within the statute of frauds. Ky. Stats., sec. 470; Green v. Elliott County Board of Education,
The question as to whether in the alleged circumstances appellees could acquire title by adverse possession against the joint remaindermen while the life tenant was living presents a more serious problem. Counsel for appellees contends that they could do so and cites two cases from this jurisdiction as supporting that theory. However, in the first case it appears that the partition agreement was entered into after the termination of the life estate and in the latter the particular question was not raised or determined except by possible implication.
The exclusive right of possession to all of the land in controversy was in Sarah Barnett during her life and she did actually occupy it until her death. Neither appellee Winfield Barnett, his brother nor the latter's widow or heirs had any right of entry until the life estate terminated. Generally speaking the possession or occupancy of real estate will not be considered adverse as to a remainderman who during its continuation had no right of entry and a presumption of a grant by adverse possession for the required statutory period will not arise where the person against whom it is claimed could not have legally prevented or interrupted it. See 1 Am. Jur. 805. However, the conclusion we have reached concerning contention (c) renders it unnecessary to determine contention (b).
The only direct and positive evidence that the alleged agreement or contract was entered into by appellee and his brother is that of appellee and the court sustained objection to this evidence and rightfully so because appellee was attempting to testify as to a transaction with a brother who was dead. Civil Code of Practice, sec. 606. There was also some evidence of witnesses called by appellee as to statements made by Mrs. Sarah Barnett concerning the alleged agreement between appellee and his brother. In the circumstances we think this evidence was inadmissible. Cf. Davis v. Davis,
In the circumstances and apart from any question of contract, no presumption favorable to appellee would arise from his occupancy or cultivation of the land claimed by him during the continuation of the life estate. On the other hand there is every presumption that such occupancy was in subordination to the right and title of his mother and the joint remaindermen since their relations were such as to preclude any idea of hostile possession which would ripen into title. In order to have any basis for a plea of adverse possession appellees assert a contract prohibited by the statute of frauds and which they claim was made with a brother whose lips are sealed by death.
In Mounce v. Hargis,
"We have held in an unbroken line of opinions that, since the acquisition of title by adverse possession was an appropriation of the title of the true owner without compensation, the facts necessary to perfect it must be clearly and unequivocally shown * * *."
In circumstances such as we have before us, it would require great preponderating weight of evidence of a strong, clear and convincing character to support the claim of adverse possession. On the whole we unhesitatingly conclude that the evidence is insufficient to support the chancellor's finding that appellees had acquired title to the land described in their pleading by adverse possession.
Wherefore the judgment is reversed with directions to set it aside and for proceedings in conformity with this opinion. *717