94 Ky. 620 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The appellant, claiming to be the- owner and in the possession of about ten acres of land in Kenton county, brought this action to quiet his title thereto against the appellee, -who is alleged to be setting up some -kind of claim to the property. The plaintiff’s
As to the possession of the property at the time the suit was instituted, we think the proof is sufficient on plaintiff’s behalf to show possession in him, and this, combined with the legal title, authorized him to sue. The real question in the case is whether the appellee, by himself or wife, had such possession of the land during coverture, as entitles him to curtesy.
In August, 1845, one James Dedman conveyed the land in controversey to Elizabeth McCollough for the recited consideration of two hundred dollars. This tract appears to have been bounded on one of its sides by a tract of some ten acres, owned by the grantee’s father.
In 1847, Elizabeth, then living in Cincinnati, Ohio, intermarried with Dittey, the appellee, who lived in the same city. To them a child was born in December, 1848. Thereafter, in March, 1849, Elizabeth died, and in about August of the same year the child died.
Just who, if any one, occupied or used this land in 1845-6-7-8 is not clearly shown. There was no house on it, but there was one on the adjoining tract belonging to the father of Mrs. Dittey, and this is shown to have been occupied by him during his life-time, and by his wife afterwards. The latter died some thirty years
Still later, in the case of Yankey, &c., v. Sweeney, &c., 85 Ky., 64. (1887), it was said that the reason of the rule requiring actual possession on the part of the husband being for the purpose of strengthening the wife’s title, whenever its equivalent is complied with, th-n the rule is complied with. “For instance,” says the court, “if the guardian of the wife holds possession of her land at the time of her death, then the reason of the rule is complied with and the husband is entitled to curtesy in the land. And if a joint tenant with the wife holds the friendly possession of the land at the time of her death, here his possession is her possession, and the reason of the rule is complied with. So, if a trustee of the wife holds possession,” &c. “Indeed,” says the court, “if any person at the death of the wife is seized of her land for her use, the reason of the rule is complied with, and the husband is entitled to curtesy."
Here the proof is the wife was in possession at the time of her death. The proof that she resided in Cin ■ cinnati at the time does not disprove the fact of her possession under the deed by her father or other person for her. If she died in possession, it was all the statute requires to entitle the husband to curtesy.
The amended answer asserts that the wife died own
Judgment affirmed.