No. 17077 | Ohio | Apr 25, 1922
It seems to be practically conceded by counsel for plaintiffs in error that no title could be acquired by them under the quitclaim deed of Joseph, whereby he sought to foreclose his right of inheritance from his mother. Such contention could not be sustained, in view of the established law of this state that the expectancy of an heir’s succession to his ancestor’s estate cannot be the subject-matter of release, and that such a covenant will not operate to defeat, by way of estoppel, title afterwards acquired from his mother by inheritance. Needles, Exr., v. Needles, 7 Ohio St., 432, and Hart v. Gregg, 32 Ohio St., 502.
The law of descent and distribution controls the descent of property, and as stated in the Needles case, supra, one cannot by will defeat that law by an executory contract made with his children for the purpose of controlling distribution after his death. However, the chief contention in this case is that while Joseph’s cotenants cannot predicate their privity of title upon the clause in the quitclaim deed, they may invoke such clause in aid of their claim of adverse possession. In support of that view the case of Russell v. Tennant, 63 W. Va., 623" court="W. Va." date_filed="1908-02-18" href="https://app.midpage.ai/document/russell-v-tennant-8176222?utm_source=webapp" opinion_id="8176222">63 W. Va., 623, is cited.
Had this deed been made by Joseph to his cotenants for a valuable consideration, that case would be apropos, as holding that while the void provision in the deed might not.confer title upon his cotenants it could be admitted as evidence between the parties to the transaction as showing that the adverse claimants and the grantor in the deed might recognize
There is an entire absence of proof in this regard, showing any adverse possession by the cotenants in possession. They relied solely on the covenant referred to in the deed to Eliza, overlooking the fact that by reason of the invalidity of that covenant Joseph acquired an entirely different interest from that which he conveyed.
The fact that the administrator of Frank brought a suit in the probate court to sell the decedent’s interest in the farm for the payment of debts furnishes no reason for holding the partition suit, begun five months before, in abeyance.
The judgment of the lower courts will be affirmed.
Judgment affirmed.