30 Ky. 232 | Ky. Ct. App. | 1832
delivered Ihe Opinion of the Court.
In deciding these controversies, wé have deemed it only necessary to enquire into the protection which the plaintiffs in error derive from the lapse of time and their possession of the land. Lames entry of 21000 acres has heretofore been adjudged valid by this court and the evidence in this record fully sustains it. The claim oí the defendants in error derived from this entry, without regard to their other claims, must therefore prevail, unless the plaintiffs are protected by the statute of limitations.
First in regard to the defence set up by Beal. It seems that his ancestor, in 1787, sold the 2<j)0 acres
Robertson settled within the interference between the claims of Beal and Holder, both of which covered by Lames entry". Holder’s patent is older than Beal’s. Joseph Brooks continued in possession after he received it from Robertson, until he instituted this suit; and if the time running between the date of the institution of the suit, and the delivery of the possession bv Robertson to Brooks, should be added to the seventeen years during which Robertson lived upon the land; and the possession of Brooks, after he entered with the consent of bertson, can be regarded as the possession of Beal; then there has been an adverse possession of more than 20 years, and the complainants ought not to have succeeded against Beal in the circuit court. We are of opinion that the possession of Brooks, under the circumstances of this case, should be regarded as the possession of Beal. Robertson as vendee entering under an executory contract was the quasi tenant of Beal. Brooks was well apprised of the relation subsisting between him and Beal. With this knowledge, he attempted to seduce Robertson into a sui render and disclaimer of the title, under which he had entered and which he was estoped to deny, by agreeing to pay him for his improvements and to pay the purchase money to Beal in case he recovered by law. We look upon this conduct as fraudulent in respect to Beal. No man should be permitted to buy up the claim of the vendee of land holding under an executory contract, and b\r so doing convert the friendl-,- po--session subsisting befcw-en rfie vendor and vendee into a possession ad
in the second place we must investigate the defence relied on by Reed. By his tenant Westfall he took possession of part of the land in controversy more than twenty years prior to the commencement of this suit. Westfall’s cabin was built in February 1790, but he did not move into it with his family until April. We look upon the erection of the cab-bin as taking possessiod of the land. This was more than twenty years before suit was brought. The possession was continued without interruption in those claiming under Reed from the erection of Westfall’s cabbin down to the institution of this suit.
The decree of the circuit court as. to Reed is reversed, and the cause remanded with directions to dispose of the cause in respect to him according to this opinion. Reed must recover his costs in this court.