81 Ky. 387 | Ky. Ct. App. | 1883
delivered tub opinion oe the court.
Matthew Lyon died many years ago, leaving several children surviving him, and the owner of a large tract of land,, then in Caldwell but now in Lyon county, that descended to these children. One of his daughters became the wife of Clark S. Bransom, and in March, 1852, Bransom and his wife executed a power of attorney to one Quarles, empowering him to sell and dispose of any part, or the whole, of the then undivided interest in the lands of Matthew Lyon lying in the counties of Caldwell, Marshall, Ballard,- or McCracken, or elsewhere in the state.
Proceedings were then in progress for the division of the land between the children, and after the execution of the power of attorney, a division was made.
The commissioners allotted to Mrs. Bransom the land in controversy in this action.
The land was sold by the attorney in fact to Francis Lyon, and the present appellee claims to hold as the vendee or the sub-vendee of Francis Lyon.
In a proceeding instituted by the vendees in possession for a division of the land under the commissioners’ deed, the children of Mrs. Bransom sought, by a petition filed, to be made defendants to that proceeding. They were made defendants, and, by appropriate pleadings, sought to recover the land in controversy (250 acres), upon the ground that their mother was an infant married woman when the power of attorney was executed; that it was, therefore, void, and the defendants holding under her are without title.
After the marriage of Mary Ann Lyon, the mother of these appellants, to Bransom, one Skinner, who had been her guardian, still continued to control the land as the agent of Bransom and wife, renting the lands out and placing tenants in the possession. There is no doubt of the possession or seizure of Mrs. Bransom as early as 1851, and -during the coverture until the sale made under the power of attorney. There is some question made in the pleadings below as to the validity of the division of the land between the heirs of Matthew Lyon; but, at best, the proceedings were only informal, and the possession under the divisign, as between the heirs, is a complete confirmation of what was done by the commissioners, and whether acquiescence in this division has been pleaded or not, the possession under it since 1852 is sufficient to make it valid in the absence of some allegation of fraud or bad faith practiced upon those who labored under disabilities at the time the division was had, nor do we adjudge that such relief could be given at this late day. The division being made, the power of .attorney passed the title but for the disability of Mrs. Bran
The only question necessary to be considered on the appeal of the children of Mrs. Bransom, is that in relation to the interest of their father in the land. Was he a tenant by the curtesy? If so, the children are not entitled to the land until the death of their father, the life-tenant; and this was the judgment rendered below, of which they complain.. They maintain that their father has no interest, as there was no seizure in the mother at her death, and they are, therefore, entitled to the immediate possession.
If the rule of the common law was changed by the Revised Statutes as to what constitutes a tenant by the curtesy, and we think it was not, a question not necessary, however, to be decided in this case, the wife was seized of the land prior to the adoption of the Revised Statutes.
No limitation begins to run against the wife except under the thirty years’ statute by reason of a sale by the husband, and the doctrine that one obtaining possession under the husband of the wife’s land must restore that possession at the husband’s death, applies still, unless the thirty years’ statute protects him. (See Gregory v. Ford, 5 B. M.)
The case of Suter v. Medlock is certainly misunderstood by counsel on both sides.
There is a period at which no right of action exists for the recovery of land, or rather, when the right of action is barred, and this is fixed at thirty years, although the party making the sale was laboring under a disability at the time of the same. The disability of infancy or coverture, or both
The thirty-year statute having no application to this case, the possession under the sale by the husband, although not
The judgment below was therefore proper, denying to the appellants the possession until their father’s death, and as they are only here on the question of facts canceling the conveyance by their mother, the court below erring in that particular o.hly, we will not reverse upon such a ground.
Carr v. Givens, 9 Bush, 679.
Judgment affirmed.