123 Ky. 311 | Ky. Ct. App. | 1906
Opinion op Court by
Reversing.
This action involves the title to 4,000 acres of land in Harlan county. The controversy between appellants and appellees concerning its ownership, grows cut of the following state of facts: In 1845 there was issued to John Taylor a patent for this land, and in 1874 he died in the State of Tennessee the owner of the land. During the period of his ownership, the land was considered of trifling value, and it does not appear that any person was in actual possession of it, or exercised any particular acts of ownership over it, but in 1888,, Joe Overton, one of the appellants, for the recited consideration of $1,050 in cash, procured one, William Taylor, to make him a deed to this land. This deed was recorded in Harlan county soon after its execution, and shortly thereafter Over-ton undertook to place tenants in possession of the
The Harlan circuit court in disposing of this motion entered the following judgment: “This cause having been submitted to the court on the written motion of appellants to strike from the record and files herein, the transcript of the proceedings in the chancery court of Hancock county, Tenn., to supply the alleged last
. Several grounds for. reversal are relied upon by appellants, among them being alleged error of the court in prmitting the appellees to prosecute an action for the benefit of all the heirs of John Taylor, deceased; that the petition did not state a cause of action; that it being conceded that the heirs of Elizabeth Berry, who were the appellants, are also heirs at law of John Taylor, and resisting the claims of the appellees, that appellees ought not to be permitted to prosecute the action for their benefit against them; that the court erred in permitting the amended petition changing the cause of action to be filed, that the judgment of the Harlan court in the will case did not estop them from asserting their title and ownership to the land; that they have shown themselves entitled to it by adverse possession; that appellants by their laches have denied themselves the right to prosecute the action; that incompetent evidence was admitted by the court; that under the statute in force when John Taylor died, the appellants were not his heirs, at law, as their ancestors Jamps, John and Rebecca Overton under whom they claim, were illegitimate ' children. In the petition filed by appellees 10 persons are named as plaintiffs, and it is alleged that these 10 persons are the descendants of John Overton, who was a half-brother of John TayTaylor, and for and on behalf of themselves and the ether heirs at law of John Taylor, they prosecuted the action against the appellants. The defendants to this
John Taylor’s mother died many years before John Taylor did, and it is very plain under this statute, that the Overtons, being illegitimate children of John Taylor’s mother, cannot inherit from him. Allen v. Ramsey’s Heirs, 1 Metc. 638.; Remmington v. Lewis 8 B. Mon. 606; Berry v. Owens’ Heirs, 5 Bush, 452. Therefore no one of the descendants of James Overton, or John Overton, or Rebecca Overton, are entitled to any part of the land in controversy, and not being entitled to it, the next question that arises is, will they be permitted to prosecute this action for and on behalf of other persons who are not named as parties in the pleadings, but who have an interest in the land in controversy? Section 25 of the Civil Code of Practice provides that, “If the question involve a common or general interest of many persons, or if the parties be numerous and it is impracticable
It further appears from the testimony of several witnesses, that there are living descendants and heirs at law of Polly Taylor, a sister of John Taylor, and possibly there are decendants of his brothers, James and Joseph Taylor. The descendants of his brothers and sister, if there in fact be any, may maintain an action for its recovery, as the evidence as it appears in this record is wholly insufficient to show that John Taylor was a bastard. The issue being made by the
The question as to the effect of the judgment of the Harlan circuit court in the will contest has been elaborately briefed by counsel on both sides of this case. Ky. St. 1903, §4854, provides that: “When a will of a non-resident, or relative to an estate in this Commonwealth has been proved without the same, an authenticated1’ copy and the certificate of probate thereof, may be offered for probate in this Commonwealth. When such copy is so offered, the court to which it is offered shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of per- ' tonality in the State or county of the testator’s domi
' As the paper title of appellants depends on the alleged deed made by William Taylor to Joseph Over-ton, and the fact that the will of John Taylor was probated in the Harlan county court, it necessarily follows that their claims to the lands in- controversy, in so far as it rests on their paper title must fail. Appellants further contend that they have been in the actual, adverse, and continuous possession of the land in controversy for more than 15 years prior to the institution of this action, and that they are entitled to hold it by reason of this adverse possession. The facts in regard to this claim are substantially these: Jn the spring of 1888, after Joseph Overton had obtained the deed from William Taylor, it seems that he placed m possession of a small portion of the land .one Berry Taylor, as his tenant; and that afterwards at different times, probably as many as five other persons occupied small portions of the land as tenants of Overton; but it does not appear that either Overton or any of his tenants were in the continuous possession of the land. In fact, the impresión is left from reading the evidence that the majority of these tenants only remained on the land a short time, and occupied it without any intention of living on, or cultivating it. It has been frequently held by this court, that to give a party the ownership of land by reason of his adverse possession, the possession must have been not only adverse and actual, but must have been continuous, open and notorious. A title asserted by virtue of
In Trotter v. Cassady, 3 A. K. Marsh, 365, 13 Am. Dec. 183, this court held, in an action under the 20-year statute, that: “To make the bar of 20 years’ possession operative and effectual, to destroy a right of entry, it is necessary that the possession, claimed as adverse, should be shown to be continued and uninterrupted. Or, in other words, if there is any period during the 20 years in which the person having the right of entry could not find an occupant on the land on whom he could bring and sustain his ejectment, that period cannot be counted against him as part of the 20 years.” In Jones v. McCauley’s Heirs, 2 Duv. 34, it was held that: “The law of limitation, being reasonable and founded on principle, does not allow the statute to run when there is no cause for action; and therefore to bar an ejectment by time, the adverse possession must have been, not only actual, but so continued for 20 years as to have furnished a cause of action every day during that whole period, and consequently, as conclusively and consistently adjudged, claim of title, however notorious, and occasional use under that claim, without actual possession, continued without intermission or interruption for 20 years, will not bar an adverse right of entry.” To the same effect is Barr v. Potter, 57 S. W., 478, 22 Ky. Law Rep. 416; Hibbard v. Wilson, 32 S. W. 1086, 17 Ky. Law Rep. 930. It is also in evidence that Joseph Overton paid the taxes on this land from the time he obtained the deed from William Taylor. The payment of taxes, however, is a small circumstance showing a claim of owenrship of the land, and is not at all
The judgment of the lower court is reversed, with directions to dismiss the petition and counter claims of the several defendants.