182 Ky. 100 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
In May, 1915, this suit was brought by sis of the seven children of John B. Adams, who died many years
In answer to this suit Bates, after denying the ownership of the Adams children or their ancestor, John B.< Adams, to any part of the land described in the petition and pleading ownership in himself under deeds from various parties as well as under a deed from James Hamilton, made in November, 1893, also relied on adverse possession and limitation. A reply by the Adams children put in issue the averments of the answer, and thereafter there was a trial by a jury and a verdict that awarded the Adams children five-sevenths of the land in controversy (it appearing on the trial that Bates had, also bought the interest of another one of the Adams children) and a judgment accordingly, to reverse which Bates prosecutes this appeal.
It appears from the record that Robert Hamilton died about the year 1862 leaving five children. In 1867 one of the children named Lucy married John B. Adams and a few years after their marriage John B. Adams, as is claimed by the children, purchased from James Hamilton, a son of Robert Hamilton, the share of his father’s estate which was alloted to him in the division. It is further claimed by them that at the time of the purchase the price was paid in cash and a title bond executed by James Hamilton to Adams for the land. It also appears from evidence in their behalf that John Bj Adams took possession of the land and held it until his death in the year 1881, and that his widow and children continued to hold and use it for some years after his death.
John B. A,dams left surviving him his widow and seven children and in 1884 the widow married Jason L. Craft, who soon afterwards purchased the interest of Margaret Adams, one of the children of John B. Adams, in the land that he had bought from James Hamilton, and in September, 1890, Craft and his wife conveyed to Robert Bates the one-seventh interest which Craft had
From this brief statement it will appear that the Adams children claimed the remainder interest in the land in controversy which the weight of the evidence shows to be the interest of James Hamilton in his father, Bobert Hamilton’s estate, by virtue of the title bond alleged to have been made by James Hamilton to John B. Adams, it being conceded that Bates is the owner of the life estate or dower interest of Mrs. Adams (now Craft) in the land by virtue of the conveyance made to him by Craft and his wife heretoforet set out.' On the other hand Bates disputes the claim that James» Hamilton sold, or executed or delivered a title bond for his interest in his father’s estate to John B. Adams and depends for title in himself upon the deed made to him by James Hamilton in 1893, and other conveyances as well as his adverse holding of the land.
One of the material issues in the case is whether James Hamilton sold and conveyed by title bond to John B. Adams his interest in his father’s estate, and the dispute as to this arises out of the fact that the. title bond could not be produced by the Adams children at the trial. The evidence, however, is both clear and convincing that James Hamilton did sell his interest in his father, Bobert Hamilton’s estate, to John B. Adams and make him a title bond therefor. Mrs. Craft, who at
Robert Bates, in his evidence, said, in answer to the question — “Under what do you claim the land in controversy? A. I claim under the Jim Hamilton deed. The' deed I got from Jim Hamilton.” Although it should be said that in other parts of his evidence he claimed under deed from Pigmon, Gibson and Craft, but we think there
A careful reading of the record satisfies us that the decided weight of the evidence shows (a) that James Hamilton did sell his interest in his father, Robert Hamilton’s, lands, to John B. Adams and make to him a title bond; (b) that this title bond described the land with sufficient accuracy to identify it; (c) that the tiflei bond, without any fault on the part of the grantees or) their successors, was lost or mislaid; (d) that Bates/ long before and at the time he purchased Hamilton’s interest, knew of the existence of this title bond and its contents, the fact of its execution and delivery by Hamilton to Adams, and that it covered the same land that Hamilton deeded to him. In short, every essential fact necessary to sustain the title bond and the knowledge of its existence and contents by Bates before his purchase from Hamilton, was, established by the weight of the evidence.
There is, as we have said, some question made by Bates that the land conveyed to him in September, 1890, by Craft and his wife in the deed heretofore referred to, does not cover the land now in controversy, or the land that Bates subsequently bought from Hamilton, but the weight of the evidence independent of the evidence of Bates shows that the land in. dispute is the land that Adams purchased under the title bond from Hamilton, and the same land that Hamilton afterwards conveyed to Bates, and this evidence is thoroughly supported by the evidence of Bates himself who, being asked
Some point is endeavored to be made in behalf oí Bates that the long delay of the Adams children in asserting title to this land is persuasive, if not convincing, evidence that they never had any title, but when it is considered that Bates purchased the life interest of Mrs. Adams in this land and in addition the remainder interest of one of the children, and under his purchase of the life interest, had the right to the use. and occupancy of the land during the life of the life tenant, it becomes at once apparent that there was no reason why the Adams children, who had not conveyed their remainder interest in the land to Bates, should make any assertion of title or question Bates’ right to the use and occupancy of thel land, because he had the title of the life tenant as well as the interest of two of the children in the remainder, and consequently the Adams children could not claim either its use or possession.
What we have said disposes, as we think, of the claim of adverse holding asserted by Bates as well as the contention that he acquired a hostile interest to the Adams children by his alleged purchase of any outstanding titles. It is too well settled to need even citation of authority that the purchaser from a life tenant by his use or occupancy of the land or his assertion of claim to it while holding as life tenant will not have the effect of converting his amicable use and possession into'! an adverse holding or start the statute of limitation
Under ordinary circumstances an adverse holding may be said to begin when the person in possession exercises the usual acts of ownership over the property and asserts a claim against the world to a well defined boundary; but of course a life tenant or his vendee does not occupy this favorable attitude and he can not as sert title by adverse holding until he has brought home^ to the remaindermen by clear and convincing evidence notice of his intention to set up a title in himself as; against them to the fee. Holmes v. Lane, 136 Ky. 21, and the same rule obtains where one joint tenant is in' possession of land owned in common with other joint tenants except that in the case of joint tenants actual notice is not necessary. Greenhill v. Biggs, 85 Ky. 155. According to this rule there is in this case no evidence that would warrant us in holding that Bates held this land adversely to the remainderman.
The instructions are complained of, but we think; they submitted fairly the law of the case to the jury, and! that the jury under the law and the facts could not well have returned a verdict other than the one they did.
Wherefore, the judgment is affirmed.