110 Ky. 128 | Ky. Ct. App. | 1901
Opinion of the doubt by
Reversing.
Appellants filed their petition in equity in this case on January 14, 1892, in which they alleged that they were the only children and heirs at law oí Eleanor Pope, deceased, and as such were the owners and entitled to the possession of the two tracts of land in controversy; containing together 208 acres; that appellees, without right or title, were in possession of the land, and had so held it for more than a month. They prayed judgment for the land and $50 damages. Appellees, by their answer, decided that appellants owned' the land, and alleged that Eleanor Pope left -surviving her James M. Pope-, her husband, who had a life estate in the land, the remainder being vested in appellants; that she died about the year 1855, and on June 7, 1872, James M. Pope, the surviving husband, and appellants sold the land to Nelson R. Tye and A. J. Brassfield for $400, who took from appellants and J-ames M. Pope a title bond whereby they bound themselves to convey the land to Brassfield and Tye when, the purchase money was paid; that the purchase- money had been paid, and that no deed had been made, but that the vendees had been -in possession of the land- adversely to all the world since the sale, and limitation was pleaded in bar -of recovery of the land. The bond referred to which was filed with the answer is in these words: “Know all men by these presents that we, James M. Pope, husband of the late Eleanor Pope (formerly Eleanor' Tye), and Henry S. Pope, Burgess Elliott and Martha E. Elliott (formerly Martha E. Pope), Hiram Foley and Nancy Ann
In Sprigg’s Heirs v. Albin’s Heirs, 29 Ky., 162, it was held by this court that an oocupant under a title bond did not hold adversely to his vendor, and that limitation would not run in his favor. The court said: “It is cop-ceded that twenty- years’ continued possession of land being shown creates a legal presumption that the occupant has title. But this presumption is not of that absolute and conclusive character which will admit of no explanation. The law, from motives of sound policy, does in some instances create and sustain artificial presumptions which admit of no contradiction or explanation. Thu® the rule that possession of goods remaining with the vendor after an absolute conveyance is per se fraudulent in respect to creditors, can not be avoided or contradicted by any proof as to honesty of intention on the part of the vendor. But we know of no artificial presumption which establishes a positive rule requiring courts and juries to regard the occupant of lands as possessed of an absolute title merely because he and those under whom he claims have continued in possession for twenty years. On the contrary, it is well settled by authority that the
It remains* to be determined whether the married women are also barred, notwithstanding their coverture. It is insisted for appellees that, where a right of action accrues to parceners or joint tenants, if .some are under no disability the statute runs against all, notwithstanding the coverture or infancy of the others; and Moore v. Calvert, 69 Ky., 356, and the cases there cited, are relied on as sustaining this conclusion. Whether the doctrine of that case should be followed under our present statutes, taking them all together, we .need not determine, as it clearly does not apply to this case. Appellees had a title in equity to the shares of Joshua T. Pope and
Petition for rehearing overruled.