46 Ky. 236 | Ky. Ct. App. | 1846
delivered the opinion, of the Court.
This was an ejectment for two. hundred and ninety five acres of land, lying in the- county of Montgomery, in which a verdict and judgment having- been rendered against the plaintiffs, they have brought-the case to- this Court.
In 1814, the heirs of John Hardy, viz: Ashford and Henry Hardy, Greenberry Riggs and Ann his wife, Hazle Williams and Mary his wife, and C. T. Hempston and Dorcas his wife, the three femes being the daughters of said John Hardy, recovered a judgment in ejectment for two hundred and ninety five acres of land, the tract now in controversy, for'which a giant had issued to their ancestor, in 1786, against William Farrow, Sr. and William Farrow, Jr. The value of the improvements having been assessed under the occupying claimant law, a bond was executed therefor by Riggs, and a part of the other heirs, and thereupon a habere facias possessionem issued, and Riggs, who had managed the suit, was put in possession, and for himself and co-heirs continued in possession about one year.
The bond for the improvements not having been discharged, an arrangement was then made between Riggs, for himself, and Ashford and Henry Hardy, and William Farrow, Jr,, by which it was agreed that the bond was to. be set. aside, and a judgment to be entered for the improvements, in favor of the defendants in the ejectment. Riggs and the two Hardys were to convey to Farrow their interest in the land, and the judgment to be credited for their proportion thereof, and an execution to issue, and the interest of the other two heirs, Williams and wife, and Hempston and wife, to be sold.for the residue. The sale was made accordingly, and Farrow became the purchaser, and in 1817, obtained the Sheriff’s deed. He at that time or before, also obtained the possession, and under his purchase from Riggs and the two Hardys, and the Sheriff’s deed, claimed and held the land as his own, and he and those claiming under him, continued soto claim and hold it till 1842, when this action of ejectment was instituted, upon the joint and several demise of John R. Riggs, Mary Williams and Dorcas Hempston.
It further appeared, that John Hardy died in the State of Maryland, in 1788, and that at the time of his death, his daughter Mary Williams was the wife of Hazle Williams, and his daughter Dorcas was single, and did
Upon this state of fact, the plaintiff moved the Court to instruct the jury, “that if they believed from the evidence, that Mrs. Williams or Mrs. Hempston, or either of them, were femes covert at the time their cause of action accrued, and so remained, or either of them, up to and within three years before the bringing this suit, the law was for them, or such of them as were such femes covert, and so remained up to and. within three years before the bringing this suit.”
This instruction the Court refused, but gave, on motion of the defendants, the following:
“That if the jury should believe, from the evidence, that Mrs. Williams or Mrs. Hempston, or either of them, were not femes covert at the time their title descended or came to them, the law was for the defendants.”
There being no controversy as to the facts of the case, the only question is, whether the Court below correctly expounded the law.
Whether the execution under which Farrow purchased the two fifths of the land, was properly'rejected as evidence, we need not enquire. If an error, it was not to the prejudice of the plaintiffs. In regard to the Sheriff’s deed, the Court was right in permitting it to go to the jury.
In order to entitle the defendants to read and rely upon the deed, for the purpose of deriving title under it, it would have been necessary to have shown a judgment, upon which an execution was authorized to be issued, and also the execution. But the deed alone, without producing
Besides it has been expressly held that where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant, the jury will be directed to presume an ac
The instruction moved by the plaintiff, is based upon the supposition that when the cause of action accrues to a feme covert during coverture, her right of action is not barred till three years after she becomes discovert. If the saving in the general statute of limitations of 1796, ,. ,. . , , were still in force, as to jemes covert, the instruction would probably be embraced by it. But the saving in that act was rePea¡ec¡ by the act of 1814, (2 Stat. Laws, 1144,) which not only reduced the time in which femes covert, * ^ under the former act, were allowed to sue after they became discovert, from tentó three years, but also restrictec| the saving to cases where lands had descended or had been devised to femes covert during coverture. The act provides that in these two classes of cases, (“and in no ,ot|.jer case,”) femes covert- shall be allowed three years only, after they become discovert, to commence their ac* tions, &c. Such was the construction, as we understand the decision, and in which we concur, given by this Court to the act of 1814, in Masterson's heirs vs Marshall’s heirs, (5 Dana, 412.) And upon this construction it follows, that, the instruction as moved by the plaintiff, was properly refused. It also results from the uncontroverted facts in the case, that the plaintiff was not entitled to recover upon the title which descended to Mrs. Williams and Mrs. Hempston, from their father. No title whatever was shown in the lessor, Riggs. Upon the demise of Mrs. Williams, there could be no recovery, as she had been discovert more than three years. Nor could there beany recovery upon the demise of Mrs. Hempston, as no title descended toiler during coverture. In the latter case the question was settled by this Court in Kendall vs Slaughter, (1 Marshall, 377.)
The instruction which the Court gave the jury, was in effect that unless Mrs. Williams and Mrs. Hempston both labored under the disability of coverture when the
Upon the whole then, we come to the conclusion that upon the facts now appearing in the fecord, the plaintiff,
It follows also, from the view we have taken, that in regard to the first trial, the verdict was properly set aside, and a new trial granted; but in regard to the last trial, that the Court mis-directed the jury as to the .law of the case, and to the prejudice of the plaintiff.
The judgment is, therefore, reversed, and the cause remanded, that a new trial may be granted without the payment of costs, and the plaintiff is entitled to his coste in this Court.