163 Ky. 737 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
Richard ,C. Parsons, husband of Sarah Parsons, deceased, and John Parsons, Reuben Parsons and Richard Parsons, children of Sarah Parsons, brought this action against W. IT. Justice to recover an undivided one-ninth interest in a tract of 85 acres of land located in Pike County, and to have the land partitioned. Being denied the relief prayed for, they appeal.
The facts are these: During the year 1872 Reuben Thacker, Sr., died intestate the owner of a large boundary of land in Pike County. Pie left surviving him a widow, Malinda Thacker, and nine children. By appropriate proceedings had in the year 1874 all the decedent’s lands, with the exception of a tract containing about 85 acres, which was assigned to the widow as dower, were partitioned among the children. After these proceedings were had William A. Thacker (known as Ep Thacker) and Reuben Thacker, Jr., proceeded to buy the remainder interests of the other children in the dower tract. Ep Thacker claimed, prior to the year 1877, to have purchased the interests of his brother John A. Thacker and his sister Sarah Parsons. On Eebruary 12, 1877, Reuben purchased from Ep’ the latter’s interest by a written contract by which the latter acknowledged payment of the entire purchase price, and agreed
The evidence further shows that after the death of Reuben Thacker, Sr., Reuben Thacker, Jr., lived with his mother on the dower tract. She died in 1884. After the death of Ms mother, Reuben continued to reside on and cultivate the whole of the dower tract, with the exception of that portion set apart to Abner Justice. On July 22, 1895, Reuben sold the dower tract to defendant, W. H. Justice. The consideration was $4,500. Sarah Pax-sons died ixx the year 1891. Though she axxd her husband lived within a few miles of the dower tract, they xxever at any time claimed or asserted any interest in the tract. Reubexx Thacker, the eldest child of Sarah and Richard O. Parsons, was born in the year 1878 or 1879. The x-ecord does not show when the second son, Richard, was born, but does show that the next cMld, John, was borxx in the year 1884 or 1885. This action was brought in. the year 1912, or 21 years after the death of Sarah Parsons. At that time her oldest child was 33 or 34
The chancellor held that Sarah Parsons and her husband actually signed and acknowledged the deed on May 6, 1878. We see no reason to dissent from this conclusion. In view of the fact that the clerk’s certificate shows that Sarah and her husband actually acknowledged the deed, it is very probable that the writing of their names over the name of Thacker was due to the fact that the deed was signed by a number of the Thackers, and that the clerk wrote the additional Thacker names instead of the names of Parsons. This conclusion is confirmed by the fact that neither Sarah nor her husband was ever shown to have laid any claim to the dower tract after the execution of the deed. It is, therefore, probable that having sold their interest to their brother Ep, they merely joined in the deed for the purpose of passing the legal title. However, inasmuch as Sarah Parsons and her husband were not mentioned in the body of the deed as grantors, the deed to Reuben Thacker, which they merely signed and acknowledged, was ineffectual, and vested no title in him. Hatcher v. Andrews, 5 Bush, 561; Beverly v. Waller, 115 Ky., 600; Webber v. Tanner, 26 K. L. R., 1108, 64 S. W., 741. As Malinda Thacker had a life interest in the 85 acres of land, and the interest which Sarah Parsons and her husband attempted to convey was only a remainder interest, to take effect after tne death of their smother, Reuben Thacker’s possession did not become adverse until the death of his mother. When she died his possession did become adverse, even though he and Sarah were joint tenants, for the reason that the deed itself was notice of his adverse holding. As Sarah Parsons was entitled only to a remainder interest in the land, to take effect on the death of her mother, who had actual possession of the land, there was no such seisin during the life of her mother, who died before her, as would, give the husband a curtesy interest in the land. Mackey v. Proctor, 12 B. Mon., 433; Moore v. Calvert, 6 Bush, 356; Maupin v. Maupin, 110 S. W., 840, 33 R., 658; Hunt v. Phillips, 105 S. W., 445, 32 R., 257; Stewart v. Barclay, 2 Bush, 564; Carter v. McDaniel, 94 Ky., 564. After the death of Sarah Parsons’ mother, the life tenant, neither Sarah Parsons nor her husband, John Parsons, nor anyone else for Sarah Parsons’ use, ever had actual seisin of the land in cont
Judgment affirmed.