47 Ky. 177 | Ky. Ct. App. | 1847
delivered the opinion of the Court. — Judge Simpson, did not sit in this case.
These cases were all ejectments, brought upon the joint and several demise of the heirs of Margaret Fauntleroy and the devisees of Anne Harrod. The law and the facts, the latter having been agreed by the parties, were submitted to the Judge in the Court below, who rendered judgments for the plaintiffs in the two cases first named, for part of the land in contest, and for the defendants in the residue.
In the two first cases the defendants have appealed to this Court, and cross errors are assigned by the plaintiffs, now appellees. The other six have been brought up by the plaintiffs by writs of error.
As the same title is relied upon and the same questions in fact arise, in each case, they will all be considered together.
The lessors of the plaintiffs claim title under three patents, embracing in the aggregate, about three thousand acres of land, which emanated from the State of Virginia in 1782 and 1783, to James McDonald, heir at law of Patrick and James McDonald. In 1785 Anne McDónald, the mother of the patentee, married James Harrod. In the fall of 1787, the patentee died intestate and an infant, leáving his mother and his half sister,
About 1802, said Margaret, being in her seventeenth year, married John Fauntleroy. She lived till 1841 and died. Her husband survived her till 1845, when he died.
Anne Harrod died in 1843, having first made and published her last will and testament.
These suits were commenced in 1843, by the heirs of Mrs. Fauntleroy and the devisees of Mrs. Harrod.
Among other facts it is agreed, that John Fauntleroy, the husband of said Margaret, never was in possession of any part of the land in controversy, in such a way as to constitute him a tenant by the courtesy.
The defendants claim the land under deeds from Fauntleroy and wife, and by possession, adverse to Mrs. Harrod and her devisees, for more than twenty years.
The validity of these deeds will first be examined.
The deeds, under which Gill and Simpson, appellants in the two first cases, claim, bear date in 1814 and 1813. The first purports to be from Fauntleroy and wife to James George, for one hundred acres. Its validity as to Mrs. Fauntleroy, turns exclusively upon the following 'certificate:.
“Mercer County, Sct.
“This day John Fauntleroy and Margaret, his wife, a party to the within indenture, personally appeared before me, and acknowledged the same to be their act and deed: and the said Margaret, separate and apart from her said husband, acknowledged the said indenture to be her act and deed, and relinquished her right of inheritance to the land in said indenture mentioned, and also relinquished her right of dower, as the law directs.
“Attest, Tho. Allen, c. c.”
To constitute a valid acknowledgment under our statutes, by a feme covert, of a deed for the conveyance of land, it is indispensable, as has been repeatedly decided by this Court, that she should be privily examined? and upon such examination, should declare she freely and willingly executed the deed. It is equally indispensable that the certificate of the clerk or examining
The certificate before us, in reference at least to one of these essential requisites, is considered defective, and fatally so. It does not expressly state, nor in terms of equivalent import, that the feme declared she freely and willingly acknowledged the deed or relinquished right of inheritance. The law is equally imperative in requiring this fact to be certified, as the fact of privy examination. And a mere inference from the fact of acknowledgment upon such examination, that the declaration was made, is insufficient, and does not satisfy the requisition of the statute in that particular.
It is true some stress is laid upon the concluding words in the certificate, “as the law directs.” Whether that expression refers merely to the relinquishment of . dower or includes the acknowledgment of the deed and the relinquishment of her right of inheritance, is not material, as in either case it would be wholly unavailing to give validity to the certificate.
The clerk is a ministerial not a judicial officer in such cases, and whether the feme relinquished her title in the way- the law required, it was not his duty or province to decide. It was his duty to state the facts in regard to her acts and declarations, and whether they amounted to a compliance with the legal requisitions and were sufficient to pass her title, it would devolve upon the Judge or the Court to decide. If she .declared, upon privy examination, that she freely and willingly executed the deed, it was his duty so to state in his certificate. And as it does not expressly, or in language clearly implying it, contain that fact, the deed as to Mrs. Fauntleroy, was clearly invalid, and as her husband, according to the agreed facts, had no estate by the courtesy, opposed no obstacle to the plaintiff’s recovery upon the demise of her heirs.
In the second case the defendants relied upon a deed from Fauntleroy and wife to Stapp, made in 1813, but the certificate of acknowledgment as to Mrs. Fauntleroy, being equally defective as the one first disposed of, the
In the case against Ramsey, the defendant relies upon a deed bearing date in 1817, which it is contended Is not' so authenticated and recorded as to pass the title of Mrs. Fauntleroy. The certificates upon it are as follows :
■ “ Mercer County, Sct :
“ I, Thomas Allen, clerk of the County Court aforesaid, do certify that John Fauntleroy and Margaret his wife, this day came before me in my office, and acknowledged the within instrument of writing to be their act and deed; and the said Margaret being by me examined separate and apart from her husband, freely and voluntarily relinquished her right of dower and inheritance, as the law directs. Given under my hand this 21st day of October, 1817. Thomas Allen.”
“Garrard County, Sct:
“ This indenture of bargain and sale from John Fauntleroy and wife, was exhibited in my office the 8th day of November, 1817, and the same, together with the certificate thereon endorsed, is truly admitted to record.
“ Test, Benj. Letcher, Cleric1’
The certificate of acknowledgment shows that the wife was privily examined by the clerk, and upon such examination, that she freely and voluntarily relinquished' her right of inheritance. It does not vary materially from the certificate in the ease of Nantz vs Bailey, (3 Dana, 111,) and upon the authority and reasoning of that case,and also of the case of Gregory’s heirs vs Ford, (5 B. Monroe, 481,) is deemed valid and sufficient to pass the title of Mrs. Fauntleroy to the land embraced in the deed.
But it is also insisted that the certificate in regard to the recording of the deed, is insufficient.
To pass the title of a feme covert to land, it is certainly true, as contended, that the certificate of her privy examination and relinquishment, as well as the deed, must be recorded, or deposited in the proper office for record, within the time required by law for recording
The objection made to this certificate is, that although it shows when it was exhibited in the office of the clerk, yet it does not show when it was handed to him or lodg.ed in his office for record, or actually recorded.. It would no doubt have been more strictly in conformity with the usual phraseology in regard to such certificates, had the clerk stated in express terms that the deed was produced to him, or was lodged or deposited in his office for record on the 8th November, 1817. But •it seems to us this certificate cannot, as it is, according to any reasonable intendment, be construed to mean any thing else. It shows that the deed was in the proper office in due time, and had been, together with the certificate thereon, truly admitted to record. It does not appear to have been exhibited for any other object, except for record, or that-it was ever produced, lodged or deposited in the office, or with the clerk, at any other time. The certificate thereon was obviously the certificate of acknowledgment, which appears from the copy before us, to have been recorded with the deed.
It was upon the deed, it is manifest, when the deed was exhibited in the office, or according to a fair and reasonable construction of the expression, was lodged or deposited in the office for record. Whether the deed and certificate were in point of fact spread upon the record book on that day, is not important. They are considered as of record when in the office for that purpose. Not is there, in our opinion, any thing in the terms of the certificate, as supposed by counsel, inconsistent with the tact that they had been actually recorded, or might have been, on the day or even hour, when they came into the possession of the clerk for that purpose.
Our conclusion is, that the record shows that the deed and certificate of acknowledgment were recorded in due time, and that the deed was, therefore, a bar to the plaintiff’s recovery, as to so much of the land as it embraced, upon the demise of Mrs. Fauntléroy’s heirs.
In the other five cases the defendants claim under two, sets of deeds from Fauntleroy and wife. Some of the-first set were made as early as 1806, and none later than 1814. The second set were made in 1831-2-3. All of the first set were defectively acknowledged by Mrs. Fauntleroy, being a mere relinquishment of her.right of dower, and the second set, according to the-recitals, were executed with a view to perfect the title..
But objections are made to the authentication' of these last deeds, as well as the first, and also to the certificates of the recording clerk. The last objection ha$ already been considered and disposed of in the case of' Ramsey; the certificates, or those to which objections are raised, being similar to the certificate in that case.
In the ease against Simpson, &c., the defendants claim, under a deed to Holtzclaw, bearing date in, 1807, but not so authenticated as to pass the title of Mrs. Fauntleroy. They also rely upon a deed, purporting to be executed by same parties to Holtzclaw’s executors and dev-, isees, in 1831.
The certificate upon the last deed, and upon which its-, validity depends, is as follows:
“Kentucky, Lincoln. County, Sct..
“I do certify that on the day of the- date hereof, this: deed from John Fauntleroy and Margaret- Fauntleroy,, his wife, to Josiah Holtzclaw and Benjamin Holtzclaw,, executors of the last will, and testament of Benjamin, Holtzclaw, deceased, was produced to me in my office, and acknowledged by the said John Fauntleroy and Margaret, his wife, to be their act and deedshe, the said Margaret, being examined by me privily and apart from her husband, declared that she sighed, sealed, and acknowledged the same, thereby relinquishing her right of inheritance, and wishes not to retract it; and acknowledged said writing, again shown and explained to her, to be her act and deed, and consents that the same may be recorded; whereupon the said deed, together with the foregoing certificate, hath been duly recorded in my office. Given under my hand this 26th day of October, 1831, as Clerk of the Lincoln County Court.
“Thos. Helm, Clerk Lincoln County Court
It is contended this certificate is insufficient In not showing that the feme declared she freely and willingly signed, sealed and acknowledged the deed.
The object of the deed, as appears from 'the recitals, was the confirmation of the previous deed of 1807, or effectually to pass the title, if that did not. It is expressly recited that the gi’antors had Conveyed or attempted to convey the same land by the former deed, but that doubts existed whether it was effectual to pass the title. The consideration was the previous sale and attempted conveyance, and the further consideration of one dollar. '
'Of the contents and object of the deed and the effect ’of her act, Mrs, Fauntleroy was fully informed. That it was shown and 'explained to her upon privy examination, does not rest upon the presumption merely, that the clerk had, in that respect, discharged his duty, but his certificate, in express terms, states that fact. With this information she declares, upon privy examination, that she signed, sealed and acknowledged the deed, and wished not to retract it, and acknowledged the same, again shown and explained to her, to be her act and deed, and consented that it might be recorded.
The question is whéther these facts import that she acted freely? That she acted understanding^, is evident. The declaration that she did not wish to retract, is equivalent to a declaration that she wished the deed to stand as her deed; and she further evinces this desire by again acknowledging it, and consenting that it might be recorded. It seems to us this should be regarded as tantamount to a declaration that she freely acknowledged the deed. It is true the certificate is not in this respect in literal conformity with the statute, but that, as is said by this Court in Nantz vs Bailey, is not necessary. The form is not essential. It is only requisite that it should expressly or by clear implication, import that the examination and acknowledgment were, in effect, conformable with the statute. The certificate in this case is, in our opinion, of that character, and is deemed sufficient to pass the title of Mrs. Fauntleroy, ■to the land in the deed mentioned.
In the two appeal cases, the deeds to George and Stapp, being, as we have seen, void as to Mrs. Fauntleroy, and her husband having no estate by the courtesy, it is clear,, according to the well settled doctrine, the plaintiff was entitled to recover upon the demise of her heirs. But it is insisted that thejudgments being for the whole land embraced in those deeds, is for too much. That the devisees of Anne Harrod were barred by the statute of limitations, and that upon the demise of the heirs of Mrs. Fauntleroy, the recovery should only be to the extent of her interest or title, which was an undivided third part of the land.
As the patentee died in 1787, leaving his mother and half sister his only relatives, his land, it is manifest, under the fourth and thirteenth sections of the statute of Virginia of 1785, directing the course of descents, descended to them in the proportion of two parts to the former and one to the latter. But whether the plaintiff was or not, entitled to recover upon the demise of the devisees of Anne Harrod, it is not deemed important, in reference to these judgments, to decide. For even conceding that he was not, the judgments are, nevertheless, in our opinion, right.
The fact is agreed that George and Stapp entered and took possession of the land embraced in their respective deeds, at the dates thereof, claiming it as their own, and that they and those claiming under them, have so held and claimed ever since. They rely upon no other title whatever, except these deeds and their possession.
The title attempted to he conveyed by the deeds, it is very evident, was the title of Mrs. Fauntleroy. It appears she had title at the time, and it is not shown nor pretended, that her husband had any other title except in her right. , In point of fact, therefore, although not so agreed in express terms, it is evident George and
No further objections being made in regard to the judgments in the two first cases, by the appellants, it results that there is no error in them to their prejudice, and they are, therefore, affirmed.
In the remaining branch of these causes, the main and important question is, whether the plaintiff was en- . titled to recover upon the demise of Harrod’s deviseesThis question turns upon the character of the possession acquired under the first class of deeds. All these deeds are deeds of general warranty, and purporting to con■vey the entire estate in fee. They were all duly executed and recorded as the deeds of John Fauntleroy, but although purporting also to be the deeds of his wife, were all void as to her with the exception of the one to Ramsey, which, as we have seen, was effectual to pass the title of both. At the date of their respective deeds, the-grantees, entered and took possession of the land therein" embraced, claiming it as their own, and have ever since, or those claiming under them, so held and claimed.
It is contended on the one side, that this possession, as to Mrs. Harrod, was adverse, and having been continued for more than twenty years before these suits were instituted, was a bar to the recovery of her devisees. On the other side, this position is denied, and it is insisted as the land descended to Mrs. Harrod and her daughter as co-parceners, and as the possession was acquired and held under the deeds of the husbárid of the
The title of both Fauntleroy and wife having passed by their deed to Ramsey, there can be no doubt that his possession was adverse to them both. It is true their title only passed by the deed, but they assume to be the exclusive owners and undertake to convey the entire estate in fee, thereby denying any right in Mrs. Harrod. Ramsey took possession, not as tenant in common with her, or with any knowledge, so far as appears,’ of her title, but claiming to be himself the sole owner. An open ’ and exclusive possession, thus acquired and held without interruption, for more than twenty live years, is, in our opinion, sufficient to bar a recovery by Mrs. Harrod or her devisees. The facts are sufficient to authorize a jury to presume an ouster, to constitute which, an actual expulsion of Mrs. Harrod from the premises, was not necessary, as supposed; nor was it necessary that she should ever have been in possession.
The doctrine is, that a denial by one tenant in common, of the title of his co-tenant, claiming the whole himself, and a refusal to pay him his share of the profits, constitutes an ouster, and renders the possession adverse. Such was the doctrine laid down by Lord Mansfield in Doe ex. dem. Fisher and wife, &c. vs Prosser, (Cowper, 217.) Such was also held to be the law in Jackson, ex. dem. Bradt, &c. vs Whitlock, (6 Cowan’s Rep, 633.)
So it has also been held that one tenant in common hindering the^entry of another, is an ouster: Gordon vs Pearson, (1 Mass. Rep., 323.) The fact also, that one tenant in common is in possession of the estate, claiming to hold it by a deed covering the whole of it, has been held sufficient evidence of ouster to support ejectment by a co-tenant: Clark vs Vaughan, (3 Conn. Rep. 191.)
But whether there has or not been an ouster, is a question of fact which it is the province of the jury to decide. What facts will authorize a jury to presume an ouster, is often a matter of law for the Court to decide, Thus in the case in Cowper, supra, it was held that the jury might presume an ouster from the fact that one
In the other cases, the first set of deeds being void as-to Mrs. Fauntleroy, were merely the deeds of her husband. They still purport, however, to convey the entire estate in fee. The grantees entered believing, it may be fairly presumed,.they had acquired an estate of that character. They did not look to Fauntleroy for title nor regard themselves as his tenants, nor as the tenants of his wife, or as holding the possession for her; nor did they enter as tenants in common with Mrs. Harrod', or recognize any right or title in her -whatever. It is evident they looked upon the land as their own, absolutely and unconditionally their own, and they took possession claiming it as their own. Their possession, tested by the obvious motives and intentions, the quo animo of all the parties concerned, including even Mrs. Fauntleroy, was manifestly adverse to Mrs. Harrod and all the world.
In the agreement of facts it is expressly admitted that Fauntleroy and wife sold these lands and made these deeds, the right of questioning the validity of the deeds, however, is reserved. They did not sell a partial interest, but the whole land. The deeds of confirmation and their recitals, made twenty years afterwards, very conclusively show that such was the intention, and that Mrs. Fauntleroy so understood it, and regarded the purchasers as the owners of the land and not as holding the possession for her.
But no matter what may have been the intention of the parties or the honest impressions of the graptees in regard to their rights, it is clear that neither the first deeds nor the possession under them, however it. may be characterized, would be availing against the right of Mi’s. Fauntleroy, upon the termination of the interest or estate of her husband. No statute of limitations would commence running against her until she had a right of entry, which was suspended during the coverture, by the conveyance of her husband, and would only revive or accrue when it terminated. But although she would not be affected by the conveyances or the possession, which as to her might not be deemed adverse, yet it by no means follows that Mrs, Harrod, who had. a present interest and labored under no disability, would not be; or that the possession as to her, would not be adverse.
It will be conceded, as contended, that though the whole land was sold and the • d eeds purport to convey the whole in fee, yet that nothing passed by them except the estate of Mrs. Fauntleroy during her coverture. As a general proposition, it will also be conceded that an entry by one tenant in common, (and it may here be remarked, that the general principles applicable to tenants in common, apply to co-parceners,) will enure to the benefit of all. But this proposition is based upon the supposition that the entry is made either eo nomine, as tenants in common, or that it is silently made, without any particular avowal in regard to it, or without notice to a co-tenant, that it was adverse. An entry of the latter character would not be presumed adverse.
In this case, as we have seen, the parties did not enter nor hold possession, claiming to be tenants in common with Mrs. Harrod. Nor can any such presumption be indulged, in the face of the agreed fact that they entered and held, claiming in their individual right, or claiming the land as their own. They entered as purchasers of the whole land from Fauntleroy and wife for a valuable, and it may be presumed, for a full and fair consideration, or it may be conceded as purchasers from Fauntleroy alone, for the effect and result in either case will be the same. During the coverture he was a tenant in common in right of his wife, with Mrs. Harrod. If he had entered claiming the whole land in right of his wife, taken the exclusive possession, denying the claim and title of Mrs. Harrod, and had actually refused to let her into the possession, this would unquestionably have constituted an ouster, and after a lapse of twenty years her right of entry would have been tolled, and she would have been forever barred. The right of Mrs. Fauntleroy to recover the land after the termination of her husband’s estate, or the actual recovery of it, would not aid Mrs. Harrod, as she had no estate in reversion or remainder, and labored under no disability. But suppose Fauntleroy had merely entered, claiming the whole land in right of his wife, taken the exclusive possession, and all the rents and profits, this, so far from being consistent with the right and title of his co-tenant, would have been a most emphatic denial of them, and after a lapse of thirty years without demand or claim by her, or any admission by him or his wife of her right, we have no hesitation in saying, would authorize a jury to presume an ouster.
But it is insisted that in no aspect of these cases would the statute commence running against Mrs. Iiarrod, until she had notice that the defendants entered and claimed to hold adversely, and that there is no evidence of such notice. Even if the correctness of this proposition as to the necessity of notice be conceded, and that there is no express or direct proof of it, still we are of opinion a jury would be authorized, from the facts and circumstances, and great lapse of time, to presume notice, not only for more than twenty years before suit brought, but even from the commencement, or the time when the possession was taken. It is admitted that Mrs. Harrod resided in Kentucky from 1785 till her death in 1843. From 1792 she appears to have been a widow. In 1806 she united with Fauntleroy in conveying a portion of this very land. The defendants were in the open and exclusive possession, under deeds purporting to sell and convey the whole land in fee, duly authenti
In the^view which we have taken, it results that the execution of the second class of deeds, affords no aid to the claim of the devisees. They do not change the character of the original entry and possession as to Mrs. Harrod, but are virtually in confirmation of it. They are a mere reiteration of claim to the whole land by the grantors, and of the denial of any right in her.
But lastly, it is contended that the defendants can, in no event be protected by the limitation, except to the extent of their actual enclosures. In answer to this objection, it need only be remarked, that the fact is expressly admitted, that possession was taken by the grantees, of the land embraced in their respective deeds. Possession was thus taken, not of a part, but of the whole land, and has been so continued ever since. Whether the whole was actually enclosed, does not appear, and is not deemed material.
In regard to the cross errors in the appeals, they present no questions which have not already been considered and disposed of, and are not deemed available.
Upon the whole, no sufficient reason is perceived for disturbing any of the judgments, and they .are therefore all affirmed.