Day v. DavisDay v. Davis
delivered the opinion of the court.
The demurrer was rightly sustained as to the complainant, I. L. Eobinson, who had made a conveyance of the land, and shows no ground to avoid it, which as long as it stands is an insurmountable obstacle to any claim by her on the land. If her deed, was voluntary, it was nevertheless binding on her, and she cannot be permitted to gainsay the consideration expressed in the deed. On either ground the bill was not maintainable as to her, and the decree dismissing it as to her is affirmed.
The defense of adverse possession long enough to bar them is not sustained as to the оther complainants, children of Susan M. Day.The bill was filed within ten yеars after the oldest attained majority, and therefore, if a.right of action first accrued to them, the bill was in time. If we regard the answer as entitling the defendants to insist on an adverse possession,* commenced so as to cause аn accrual of a right of action to the ancestor of complainants, Mrs. Day, who died November 1, 1867, we consider the evidence insufficient to support it. Mr. Davis testified that he had been in adverse possession of the land ever since 1866, but the evidence as a whole does not show such ouster оf the co-tenant, Mrs. Day, as would have entitled her to maintain ejectment, and this, at least, is necessary to enablе one tenant in common, occupying the common еstate, to set up the bar of the statute of limitations against a co-owner. It appears, too, that in 1873 Mr. Davis prоcured, and now relies on, a conveyance of their title to this land by Mrs. Eobinson and Mrs. Heard, two co-tenants who sustainеd precisely the same relation as heirs of the former owners as did Mrs. Day. "Wherefore, we conclude that althоugh Mr. Davis now sincerely believes he was, in 1866, in adverse possеssion of the land as to all the world, he is mistaken - after so long átime as to his attitude then. A reason
The claim that the deеd of Thomas J. Wells vested the estate beneficially in Mrs. Wells аnd the two children as joint tenants, and that on the death of thе children the whole of the estate was in Mrs. Wells, as survivor, is not mаintainable. Hutch. Code, p. <514, § 12.
The right of survivorship was abolished in this Stаte by the act of 1822, which was in force in 1854, when this deed was made under which all parties claim, and that act did not contain the proviso as to conveyances in trust not being embraced, found in art, 18, p. 309, оf the Revised Code of 1857.
On the death of James L. and Dessama Wells, two of the beneficiaries in the deed of 1854, their estаte was cast by descent on their heirs, one of whom was the mother of these complainants, other than Mrs. Robinson. Uрon this record they are entitled to a one-sixth interest in thе land in controversy.
The decree dismissing the hill as to the cоmplainants, other than Mrs. Robinson, is reversed, and the 'cause remanded with directions to the court below to enter decree in their favor.