88 Ky. 414 | Ky. Ct. App. | 1889
delivered the opinion op the court.
At the death of Benj. Clark, that took place many years since, his lands, lying in Mason and Fleming counties, were divided between his children. A part of the land in the division fell to Mrs. Mary McMillan, the wife of Andrew F. McMillan and daughter of the intestate. There .is some question made as to the regularity ■of the partition, but it appears that the children took possession of their respective parcels and have been in the possession for more than half a century, and it is ■now too late to raise such an issue.
On the 28th of February, in the year 1817, the husband of Mrs. McMillan sold*, by executory contract, the entire parcel of land allotted to his wife, to his brother-in-law Walter Lacey, by the terms of which he was to ■execute to Lacey a deed on or before the 28th of Februay, 1818. This bond for title was signed by the husband alone, the wife not being a party to the agreement. The consideration was $8,000, the greater part of which has been paid.
In 1819 the wife of McMillan died, leaving her husband and an infant daughter surviving her. The husband, Andrew McMillan, died in the year 1870, having married
The only defense to this action is the statute of limitation of thirty years. The title is perfect and, in fact, each party is claiming title through the original owner, Benj. Clark. It is at least conceded that the land belonged to Mrs. McMillan, the daughter of Clark, and that her husband sold it as her land to Lacey and gave his bond for title. It is attempted to be maintained that the statute of limitation applies although the life estate of McMillan intervened between the death of Mrs. McMillan in the year 1819 until the year 1871, because Lacey was in the possession from February, 1817, claiming under the title bond of McMillan. “ The period within which an action “for the recovery of real property may be brought, shall “not in any case be extended beyond thirty years from “the time at which the right to bring the action first
In this-case the thirty years’ statute has no application, for the reason that the husband, having sold the land long prior to the statute of 1846, was then a life tenant and his interest passed to the purchaser, Lacey, the wife of McMillan having no right of entry or cause of action until the death of her husband. But it is argued that if Mrs. McMillan had signed the title bond, the life estate of her husband would have been in the way, although her contract was void, and the same would apply in each state of case, preventing the wife from a recovery.
This argument would have much force but for the statute of thirty years, that sanctifies the sale and removes the disability. The statute says it can not be pleaded. You will not be allowed to say that you were a feme covert when you sold. Here the wife never parted with her title, or attempted to do so, either in writing or by parol; but the life tenant sells his interest to one who is now claiming to hold adversely to the title he purchases, and when the wife has no cause of action or right of entry. Adopting the views of counsel for the .appellant, it would result that the tenant for life could always bar the remainderman by conveying the absolute, title,- and if the purchaser remained in the possession for •thirty years, although the period during which the life •tenant lived, those in remainder would. be denied the right of recovery. All the cases have preserved the remainder by holding, that unless there was a sale by the
Perceiving no error in the judgment below, the same is now affirmed.