92 Ky. 518 | Ky. Ct. App. | 1892
DELIVERED THE OPINION OE THE COURT.
Appellant, Daniel Moore, brought this action for division of a tract of land, and allotment to him of one-fourth thereof, claimed under sale and conveyance by James Moore, three-fourths having been purchased from the other joint tenants by defendant Baker, now appellee. By an amended petition, James Moore was joined as plaintiff in the action, and it was alleged he, while an infant, had attempted to sell the same undivided fourth of the land to the defendant, but got nothing therefor, and that he had, after arriving to the age of twenty-one years, ■disaffirmed the contract, of which defendant was informed, and then again did so. A special demurrer for defect of parties plaintiff was sustained, and the action dismissed as to James Moore, and afterwards judgment was rendered on the merits for the defendant.
James Moore was not a necessary party for determination of the only real issue in the case, which is, whether the sale and conveyance by him to appellant was within the inhibition of section 2, chapter 11, General Statutes, as follows : “ All sales or conveyances * * * of any lan d or the pretended right or title to the same, of which any •other person at the time, of such sale, contract or convey anee, has adverse possession, shall be null and void.” Eor if the sale was champertous he no more than appellant, nor indeed with him, could maintain the action, it being well •settled by this court, that even the vendor of land in such case is without remedy unless and until the champertous contract has, in good faith and prior to commencement of his action, been rescinded. We therefore think‘the
As has been held by this court, a party may, after arriving at full age, disaffirm a contract made during infancy for sale of real property whether executed or executory, by merely making another conveyance of the same-property to a third person, and it is not necessary for him to refund to the first purchaser the consideration received in order to render either the disaffirmance or such second conveyance valid and effectual. Vallandingham v. Johnson, 85 Ky., 289.
The decision of this case consequently depends upon the simple inquiry whether appellee Baker had, at time-of the sale and conveyance by James Moore to appellant,, adverse possession of the one-fourth interest in question, in meaning of the section quoted; for if he-had the lower court properly dismissed the action ; if he did not, there was no obstacle in the way of granting to appellant the relief prayed for.
No case involving the precise question before us has heretofore been directly submitted to or decided by this court; but looking to the purpose and meaning of the. champerty statute as we have uniformly interpreted it,, there is but one way to decide the question.
It is well settled that possession may be adverse under-
The same reason applies to a purchase of real property from an infant, who may, as soon as he arrives at full age, or even before at the suit of his guardian, disaffirm the contract, however solemnly made, and enter into possession. And every such contract is made with the presumed knowledge by the purchaser of the statute giving to the infant seller the right to disaffirm the contract, and he therefore holds the premises in the interim, not adversely, but subject to the right of entry by the infant seller. It thus results that appellee did not, nor could according to the meaning and policy of the statute, be regarded as having adverse possession of the one-fourth interest when it was sold to appellant by James Moore. And the judgment is reversed and cause remanded for proceedings consistent with this opinion.