183 Ky. 140 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
In this action filed January 6,1910, by Linnie McCoy against the heirs and surviving husband of Nancy A. Maynard, and J. P. Miller, the father of appellee, the title to about an acre and a half of land is involved, it being claimed by Linnie McCoy under title bond, alleged to have been executed to" her by Nancy Maynard and her husband, T.. J. Maynard, in 1884. A. J. Maynard, a son of Nancy Maynard, claims it by inheritance and under deeds from the other heirs of his mother. Appellee, Belle Miller Thompson, claims it under title bond from Nancy Maynard and her husband, T. J. Maynard, executed in 1884 to Greene McCoy, and several mesne conveyances; she also claims title by adverse possession in herself and those finder whom she claims, since 1884, and in addition pleads and relies upon the fifteen year and three year statutes of limitation, estoppel and champerty. The judgment of the chancellor dismissed the claims of Linnie McCoy and the Maynards, and adjudged the title to appellee, Belle Miller Thompson.
Only A. J. Maynard has appealed, so we shall confine ourselves to the controversy between him and appellee.
Although appellant was a defendant from the beginning of the action, the first pleading filed by him was on October 17, 1914, and is styled “Amended Petition,” in which he suggested the death of his co-defendant, J. P. Miller, and sought to revive the action against his heirs. In response to the summons on this “amended petition” appellee filed an answer, counterclaim and cross petition, the cross petition having been directed seemingly against only some new parties of whom she s'ought to recover.on their warranties, in the event she was evicted, and not against her co-defendant, A. J. Maynard, now appellant; but as he styled his pleading by which she was brought into the controversy “amended petition” we shall treat her answer and counterclaim as an adverse pleading to appellant’s claim, as it was manifestly intended and as it
It is therefore apparent upon tbe pleadings only, appellee was entitled to tbe judgment rendered in ber behalf, because of tbe thoroughly established rule thus stated in Smith v. Cox’s Committee, 156 Ky. 118:
“When limitation is pleaded it is essential that if tbe plaintiff relied on any disability to avoid tbe running of tbe statute, this under tbe present Code must be pleaded; for it is new matter and otherwise tbe defendant would not be apprised that this objection to tbe running, of tbe statute was relied on. Tbe rule applies to married women no less than other persons laboring under disability. ’ ’
Arguing the case solely upon its merits, counsel for appellant insist that as Mrs. Maynard did not convey the land to Greene McCoy, appellee’s remote vendor, by deed, but executed only a bond for title in 1884, while she was under disability of coverture, and before the passage of the married woman’s act in 1894, the bond for title was void, and she died the owner thereof; that as she was under disability of coverture until her death, the possession of those under whom appellee claims, was not adverse. to her, and the statute of limitation did not begin to run against her. Although these propositions of law are true, yet they are not available to appellant, because of his failure to plead those facts which are new matter of avoidance of appellee’s pleas of adverse possession and limitation. If, however, we might disregard appellant’s failure to plead these matters of avoidance otherwise disclosed by the record, we might, we tliink, with equal consistency overlook the failure of appellee to plead the thirty year statute of limitation, which the record discloses was available to her, and a complete bar to apellant’s claim of title which was first asserted in his answer filed June 23, 1916, more than thirty years after the beginning of the continuous adverse possession in 1884, of appellee and those under whom she claims; so whether we regard the pleadings only of appellant and appellee, or the merits of the case as disclosed from the record, the judgment of the chancellor is warranted.
Wherefore, the judgment is affirmed.