182 Ky. 45 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
The suit was brought by plaintiff against the defendant to quiet the former’s title to such privileges, and to cancel the lease under which the' defendant claimed to be the owner thereof. The circuit court sustained the prayer of the petition and cancelled defendant’s lease, and complaining of that judgment it prosecutes this appeal.
In addition to contending that its remote lessor, Charley Bernard, was the legal titleholder to the 50 acres of land, the defendant also interposed a plea of champerty, both of which were denied by the circuit court, but each of them is insisted upon on this appeal. The contentions of plaintiff are that his lessor, Ira Bernard, was the owner of the 50 acres at the time plaintiff’s lease was acquired, and that Charley Bernard had no interest whatever in the leased land, nor did defendant have such possession as to make- plaintiff’s purchase champertous. Manifestly if Charley Bernard, the remote lessor of defendant, was the owner of the land at the time he executed the lease under which the defendant claims, then plaintiff acquired no interest under the lease which he obtained from Ira Bernard, and if the evidence authorizes such a finding there will be no necessity for considering the plea of champerty.
The facts with reference to the title of the 50 acres in question are substantially these: In 1880 Ira Bernard and his wife, Mary Bernard, with their family of nine children, the oldest of whom, Jesse Bernard, being about ,21 years of age, resided upon a tract of land containing 100 acres in Lawrence county, the title to which was held by Ira Bernard, and upon which there was a lien for some amount not shown by the record. This tract was bounded on one side by a public road, and on January 19 of
A short while after the husband’s departure Jesse Bernard married and moved upon and took possession of the 50 acres of land, claiming it as his own, contending that his • father intended to and did give him that tract, and that he had purchased it from Duvall for that purpose. He occupied that tract for more than two years, but after purchasing the 100 acres he moved upon the remaining 51 acres of it, after giving to his mother the 49 acres, but continued to occupy the 50 acres with tenants for some three or four years longer. He then gave, or, to use his own language, “turned over” the fifty acres to his mother, who took possession of it and continued to occupy, use and claim it until her death in 1912, cultivating portions of it and renting other portions. She executed her will by which she devised the 50 acres to her youngest son, Charley, who had lived with her from the time of her husband’s departure, and it is the title which Charley obtained under his mother’s will which plaintiff insists is worthless, while defendant contends it is perfect, since his mother, at the time of the execution of her will, and at the time of her death, had acquired a perfect title by adverse possession.
The evidence discloses that when Ira Bernard deserted his wife and large family of children he located at Cloverport, in Breckinridge county, and that it was by mere accident that his wife, twelve years later, learned that he was still alive, and of the place of his residence.He, however, after that time continued to reside at Cloverport, and never visited his wife or family, nor did:
It is insisted by plaintiff’s counsel that the possession of the 50 acres by the wife, Mary Bernard, after the departure of her husband, was amicable to his title, since it was acquired by virtue of the relationship, and that the proven acts of ownership exercised by the wife after that time were not sufficient under the law to convert her ownership, amicable at the beginning, into a hostile or adverse one as against her husband. It is.furthermore insisted by plaintiff that if the wife’s holding had been sufficient to make it adverse to her husband, she could not acquire a title in that manner because it is incompetent, as claimed, for either spouse to acquire such a title as against the other. "Whatever may be the true solution of plaintiff’s contentions, we are convinced that undei; the facts disclosed by the record it is not necessary to determine them.
It will already have been observed that upon the de-' parture of Ira Bernard from his family in 1880, his oldest son, Jesse, took charge of the 50 acres of land under a claim of right, insisting that it was purchased for,- and as. a gift from, his father to him. He afterwards exercised exclusive and notorious acts of ownership concerning it, and claimed it as his own. He furthermore testified that he paid all of the deferred payments to Duvall, the vendor, and the title bond in the record shows that the only deferred payment credited on it was paid by Jesse
That a married woman may acquire a title by adverse possession there can be no doubt. In 1 Cyc., 1122, the text says: “Where a married woman, in her own right, takes and holds possession of land adversely to the owner for the statutory period, she acquires title by adverse possession which can not be affected by the acts of her husband. ’ ’
In support of the judgment below we are referred to the cases from this court of Tippenhauer v. Tippenhauer, 158 Ky. 639; Chambers v. Pleak, 6 Dana 426, 32 Am. Dec. 78; Morton v. Lawson, 1 B. Monroe 45; Frazier, et al. v. Morris, 161 Ky. 72; Padgett v. Decker, 145 Ky. 227; Murphy v. Newingham, 151 Ky. 360; Snyder v. Vinson, 167 Ky. 332; Cryer v. McGuire, 148 Ky. 100, and Wolford v. Smith, 146 Ky. 341, wherein it is substantially held that an amicable entry not under an expressed unconditional gift or purchase, although accompanied by peaceable possession, will not ripen into a title in the occupier until and after the real owner has received notice (actual or constructive) and thus become warned of the adverse nature of the holding and its hostile character for the requisite time.
The principle of law announced by those cases is cori rect and receives our continued approval, but we do not find the facts, in this record sufficient to authorize its application. On the contrary, we find the entry of Jesse Bernard to have been unfriendly to any supposed title held by his father, and it was made under a gift of the land, as we find from the evidence, and when possession is thus taken the authorities- are abundant that the subsequent possession, if held under a claim of right, will be adverse to the holder of the title. Tippenhauer v. Tippenhauer, supra; Commonwealth v. Gibson, 85 Ky. 666; Thomson v. Thomson, 93 Ky. 435; Murphy v. Newingham, 151 Ky. 360, and New Domain Oil Gas Co. v. Gaffney Oil Co., 134 Ky. 792. Since the possession of the first occupier in this case was not
We therefore conclude from a consideration of the entire case that Mrs. Mary Bernard, at the time she executed her will, had acquired title to the 50 acres in question by adverse possession, and that Charley Bernard, the defendant’s remote lessor, acquired title to that tract under his mother’s will, and his lease to Hayes, defendant’s assignor, transferred the right to mine the oil and gas under that tract, and as a consequence the leases executed by Ira Bernard to the plaintiff were each of them invalid and of no effect, since he had nothing to convey.
It results that the petition should have been dismissed and the judgment is reversed, with directions to enter that order.