82 Ky. 146 | Ky. Ct. App. | 1884
delivered the opinion of the court.
John P. Cochran at Ms death left surviving him his two daughters, Mrs. O’Dell, the appellant in this case, and Mrs. Eliza Little, the appellee, the husband of Mrs. Little being a party to the appeal. The real estate of the daughters was allotted to them, and conveyance made by which each was invested with title to her portion of the inheritance. After this was. done, they ex
After the conveyance to Mrs. O’Dell, she and her husband sold the lot in Louisville, conveyed to them by Little and wife, and invested the proceeds in other property. The conveyance evidencing the exchange between the two sisters was made in the year 1862, and at that time Mrs. O’Dell’s husband was living, but Tailed to unite with her in the conveyance. He was no party to the deed, except his signature under that of the wife, and his acknowledgment afterwards made in •conjunction with the wife before the clerk.
When the conveyances were made in 1862, Mrs. Little- and husband took possession of their lot, and have been in the possession since that time. In 1873 The husband of Mrs. O’Dell died, and she was then -dis-covert, and in 1881 instituted this action of ejectment against her sister, Mrs. Little, for the recovery of the lot conveyed to the. latter upon the ground that her '•husband, not uniting with her in the conveyance, it was "absolutely void.
The appellees, Little and wife, filed an answer, relying : First, on the statute of limitations ; second, that The appellee, Mrs. O’Dell, having been invested with •title, and having disposed of the lot conveyed her by her sister, is estopped by such acts from recovering the lot in controversy.
We can not well see how the plea of the statute of limitation is to be avoided, if the theory of the appel.ant is to prevail.
The entry bn the land was not then under the title of
There was no life estate or curtesy sold by the husband that would prevent the statute from running, but. an entry under a conveyance that appellant claims did not pass the title. Whether it did or not under our-statute is involved in doubt, but we think it is manifest that the entry was under Mrs. O’Dell, and if the title is defective, the statute began to run at once, and the feme is only protected by the saving of three years embraced in section 2 of article 1 of chapter 71, General Statutes.
In Stephens v. McCormick, 5 Bush, this court held that where the husband sold the wife’s inheritance
This is a much stronger case, as there was no impediment on the part of the husband and wife, and the ■entry was under the wife with the claim of an absolute title against both, and, therefore, the action must have been brought within three years after the husband’s death, and if not, and the fifteen years have run, excluding the three years, the saving clause of the statute, '.the limitation is a complete bar to the recovery.
If this position is not tenable (but as to the correct-mess of the ruling we have no doubt), how is the appellant to escape the equitable defense relied on by the .appellee. She has obtained her sister’s land by an .absolute conveyance; has passed this sister's inheritance by a conveyance to other parties, receiving herself 'the considerations, and is now asking her sister, the appellee, to surrender the land conveyed to her by the -appellant for the reason that her conveyance is void. By - the exchange of lands she makes herself the sole heir, or obtains the entire inheritance to the exclusion ■of the appellee, if a recovery is permitted in this case. She becomes invested with title to the whole, and having disposed of the one half seeks to recover the other. It does not follow that because the deed or contract of ,a married woman is void, that in a court of equity she