199 Ky. 302 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Some time previous to 1891, appellants, J. Y. Booten and J. D. Booten, becaiñe indebted to appellees, F. P. Robertson & Son, a partnership, for goods' and merchandise sold by Robertson & Son to the Bootens. The account being unpaid Robertson & Son sued out a general
It is conceded by both'sides that the general rule with respect to joint owners is that the entry and possession of one joint owner inures to the benefit of all joint owners, the legal presumption being that the entry of the one was made according to the right of the party making it,
Appellants insist that a joint tenant may acquire title by adverse possession against his co-owners in three ways, which we will point out. The burden is upon the cotenant, claiming in severalty, to establish a disseisin by an adverse holding for the statutory period. In order to do so the claimant must show, (1) that he gave notice to his cotenants by express declaration that he was claiming the whole estate in severalty, and denying their right therein; or (2) he must have so exercised the possession and controlled and used the premises, as to have apprised a reasonably prudent person that the claimant in possession was denying the right of his cotenants to any share in the estate; or (3) he must hold the estate adversely and exclusively under title of record for the whole in severalty, and thus bring constructive notice to the outstanding cotenants.
Appellants say they have exercised possession and control over the premises in such a notorious way and manner as to have apprised reasonably prudent persons claiming an interest in the property that appellants were denying such right and claiming the entire property as their own, and that therefore they come within the second class enumerated in the case of May v. C. & O. Ry. Co., supra.
The Bootens had no paper title to the entire property of more recent date than the deed of appellees Robert-sons. Neither had they given notice to the Robertsons of their adverse claim to the property. They relied for an exclusive title to the entire tract upon their sole occupation and open, notorious possession, use and improvement of the lands as notice to the Robertsons sufficient to set the statute of limitations running in favor of the Bootens more than fifteen years before the commencement of this action, resulting in the ripening of title in the Bootens before it was challenged by this action on behalf of the Robertsons. This case is easily distinguished from that of May v. C. & O. Ry. Co., supra. There the co-tenant in possession took deed to the entire tract and
Appellees insist on their cross-appeal that they should have recovered one-third (1/3) instead of one-sixth (1/6) of the land, but we are persuaded that the chancellor arrived at the proper conclusion in holding that appellants, J. V. and J. D. Booten, owned only one-sixth interest at the time of the levy of the attachment and entry of the judgment awarding a lien upon the said lands.
It is next insisted by appellees that they are entitled to recover rents for the use of their interest in the tract of land, and this insistence is not altogether groundless. On the other hand, appellants insist that they are entitled to recover for improvements built on the land. These improvements, appellees say, have decayed and are now of very little value; that the house and barn have been used by appellants without repairs for so many years that they have deteriorated and became worthless; that the trees planted have died of old age and are therefore of no value. We cannot consent to this argument. The improvements are worth something; so also was the
Judgment affirmed.