193 Ky. 305 | Ky. Ct. App. | 1921
Opinion op the Court by
Reversing.
Paul Tipton was the owner of a twenty-five acre tract of land located on Rock House fork of Cow creek in Es-till county. It appears that on November 28, 1872, Paul Tipton and Ms wife, LoMsey Tipton, executed to tbeir daughter, Delpby Russell, wife of Noah B. Russell, the following contract or bond for titles
“Nov. 28, 1872.
“This agreement entered into between Paul Tipton and Louisey Tipton, party of the first part, and Delphy Russell, of the second part, of the part have this day granted, bargained and sold to her of the second part, a piece of land in Estill county, on Cow creek, supposed to be twenty-five acres, more or less, for the sum of twenty-five dollars, twenty-five dollars down and fifty dollars in twelve months from the date, and then the party of the first part is to make the party of the second part a good warranted deed. Bounded as follows, to-wit: Beginning at the limestone cliff, thence with his line across the hollow to the cliff on the other side, thence with the cliff around to the beginning.
“Witnesses: Aron Fletcher, Paul Tipton,
Jake Tipton, Louisey Tipton.”
Delphy Russell died in the year 1887, leaving surviving her her husband and several children. On August
John Russell, claiming to be the owner of five-sevenths of the land, and Sarah Risen and Noah Simpson Russell, claiming to be the owners of the other two-sevenths, subject to the life estate of their father, Noah B. Russell, brought this suit against Samuel Tipton, Gr. E. Turpin and the Wood Oil Company to cancel the lease and to enjoin the defendants from committing waste by taking the oil and gas from the land. The defendant, Samuel Tip-ton, denied the ownership, of plaintiffs, and pleaded title in himself, both of record and by adverse possession. On final hearing the petition was dismissed and plaintiffs appeal.
The evidence for plaintiffs is as follows: Jeptha Tipton, the nephew of Paul Tipton, the original owner "of the land, testified that he bought the land once from Noah Russell. He went to see his uncle Paul about it, and his uncle Paul said he could not make him a deed, that it was not according to the contract. He further stated that the deed was to be made to Delphy and her heirs. In another connection witness stated that his Uncle Paul said that the deed was to be made to Delphy and her husband. At that time Delphy Russell was dead, and Noah Russell was living on the land. Martha J. Tipton, daughter-in-law of Paul Tipton, testified that she was at the home of Paul Tipton in the fall of 1900. She heard Paul Tipton tell John Russell to bring a clerk over and let him make a deed in his lifetime. She also testified as follows: “I heard him say that he sold it to him but the deed was to be made to their daughter and her heirs.” On cross-examination witness stated that Paul Tipton said that the land was sold to Noah Russell and wife, but that the deed was to be made to Delphy and her heirs. She heard this both before and after the death of Delphy Russell. Mary B. Wise testified that she heard Paul Tipton say that he had sold the land “to Delphy Russell and her children.” She supposed that Paul Tipton knew at the time he made the remark that Noah'Russell had sold the land to Joseph. Rankin R. Tipton, a son of Paul Tipton, testified that he heard his father say several
The evidence for the defendants is as follows: Nelson Tipton, nephew of Paul Tipton, stated that on one occasion Paul Tipton stayed at his house for four or five days, and while there, stated that he had sold the land to Noah Russell for $25.00, and Noah had paid him $10.00 down. Noah Russell also told him that he had bought the land from Paul Tipton. E. L. Raker, brother-in-law of Noah Russell, testified that he heard Uncle Paul Tipton .say that he had sold Noah Russell the land at the head of the hollow. He also heard his wife make the same remark. Defendant, Samuel Tipton, testified that he had owned the land for twelve years and bought it from George Moses and wife. George Moses bought the land from Noah Russell. He had never seen any evidence of title from Paul Tipton to Noah Russell. When George Moses bought the land he took possession of it. Since he had had the land he had farmed it. At one time he rented the land to plaintiff, John Russell. On cross-examination he stated that after Delphy and Noah were married, they lived on the tract for a while. At the time he testified there were two producing oil wells on the land. Simp Tipton testified that he was present when Noah Russell bought the land. He heard Uncle Paul say, “Noah. I have just concluded to sell you this land,” and Noah said, “All right, pap, I will buy it. ’ ’ The price was $25.00, and when $15.00 was paid, a deed was to be made. When this was done there were present Paul Tip-ton, Louisey Tipton, Noah Russell, Delphy Russell, Simp Tipton and perhaps Weeden.or Jake. Sam Ginter did the writing. At that time Noah Russell paid $10.00 in script and money. After that time he never knew of Paul Tipton’s attempting to execute a bond to Delphy, 'but his wife did. On cross-examination he said that the old lady said she was going to sign a bond to Delphy so Noah couldn’t sell it. At that time he could not read the paper, but that is what they said. After the bond was written and signed by Louisey, she said ,she was going to give Delphy a bond so Noah couldn’t sell it. Louis Tip-ton, a cousin of the defendant, testified that Paul Tipton told him he had sold the land to Noah, but did not like the fact that Noah had sold it to the peddlers. This occurred about a year before Paul Tipton died.
.But it is insisted that the description in the title bond is too vague and indefinite. Whether the description would be regarded as sufficient if the contract had remained executory, it is unnecessary to decide. Here the contract was executed by the vendee’s taking possession under the contract and holding the land with the acquiescence of the vendor. That being true, the subject matter of the contract was made certain by the acts of the parties, and the contract is not void because the description was not sufficient. Overstreet v. Rice, 4 Bush 1, 96
The bond being valid, it follows that, on the death of Delphy, such title as she had passes to her children, sub* ject to the curtesy rights of her husband.
The property was acquired, in 1872. Possession was then taken by Delphy and her husband, and their possession continued until her death in 1887. There being issue of the marriage born alive, the husband, under the statute then in force, was entitled to a life estate in the entire property, and this is true' even though the wife held the land under an executory contract. Brewer v. VanArsdale, 6 Dana 204; Stevens v. Smith, 4 J. J. M. 64; Bailey v. Duncan, 4 Mon. 256. It is well settled that a vendor can, as against third persons having a superior title, convey only such rights as he in fact has, and the purchaser takes subject to the rights of such third persons. 27 R. C. L., p. 668. That being true, only Noah Russell’s life estate in the property passed by Ms.-deed to .Moses, and by Moses’ deed to Samuel Tipton.
Neither the possession of the life tenant, nor the pos-. session of one claiming through him, can become adverse to the remaindermen during the life of the life tenant, unless he brings home to the remaindermen, by clear and convincing evidence, notice of his intention to set up> title in himself as against the remaindermen. Bates v. Adams, 182 Ky. 100, 206 S. W. 163; Phillips v. Williamson, 184 Ky. 396, 212 S. W. 121; and there is no showing in this case that such notice, if any, was brought home to the remaindermen fifteen years before suit was brought. That being true, plaintiff’s right of action was not barred by limitation or lost by laches.
As Samuel Tipton owns only a life estate in the property, he could not execute a valid oil lease thereon, and as plaintiffs own the remainder, they are entitled to have the lessees enjoined from committing waste on the property.
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.