| Ky. Ct. App. | Mar 26, 1871
delivered the opinion oe the court.
In March, 1823, Mark Lampton, a citizen of Louisville, published his last will and testament, and shortly thereafter died, leaving three children — a daughter, Minerva, who was at the date of his will the wife of Ephraim S. Stone, Fanny
“ I give and devise to my son, Edmund S. Lampton, and his heirs and assigns forever, five negroes (naming them), also eight acres of land, lying and being in Louisville aforesaid, on the western side of my ground, in the range of twenty-acre lots, to be bounded on the west side by Campbell Street aforesaid, which runs through the twenty-acre lot number two, and to extend from said street eastward!y equal distances along said south street, and the southern boundary of said ground to include the said eight acres of land, with all the appurtenances......And if the said Edmund shall die without lawful issue, it is my will and desire, and I do hereby direct, that the estate herein devised to him shall go to his sisters in equal portions, and if either or both of them be then dead, to the child or children of such dead sister, the children taking the share of the dead parent.”
After the death of the testator his daughter, Fanny M., married Thomas F. Crutchfield. And afterward E. S. Stone, the husband of Minerva, died, leaving her and her son, E. M. Stone, surviving; the widow then married B. H. Minter, by whom she had a son, F. Marion Minter. Some years thereafter Mrs. Minter died, leaving her sons, E. M. Stone and F. Marion Minter, her only heirs. After having married, F. M. Minter died, leaving two infant children, Mary Sallie Minter and Edward Law Minter, his only heirs. After the death of his sister, Minerva, and her son, F. M. Minter, Edmund S. Lampton died, as is alleged, in 1865, “ without issue.”
In December, 1866, this suit in equity was brought by Crutchfield and wife against E. M. Stone and the infant children of F. M. Minter, heirs of the testator’s daughter, Minerva, and quite a number of other persons, to whom it is
Stone answered, and made his answer a cross-petition against the defendants, the Minters, and unites with the plaintiffs in the prayer for relief against the persons in possession, claiming a moiety of the lots sued for, except such as he admits he joined E. S. Lampton in the conveyance of, which he designates by their respective numbers; the plaintiffs also admit they joined E. S. Lampton in the conveyance of some lots, described in their petition by their numbers, and disclaim any right to them.
It should be observed that Stone, by his cross-pleading, claimed one moiety of the property sued for, to the exclusion of the Minters; this claim they controverted by their answer, and on the trial of that branch of the case in the court below a judgment was rendered favorable to them; but, on an appeal
In the answer of the defendants they controvert the death of Edmund S. Lampton, and say if he be dead they deny that he died without issue; admit severally that they are in possession of the respective lots or parcels for which they are sued, and claim to hold the same rightfully. They aver that they are purchasers in good faith, having paid an adequate price, and believed that they were getting a good and indefeasible title; some of whom purchased directly from said Lampton, and some from his vendees, immediate or..remote; and they allege that all who purchased directly from him took counsel of persons learned in the law, and were assured by them that the title was good; and hence, confiding in the opinion of their legal advisers, they made the purchases. They allege that they, and those under whom they claim, have had a continuous possession adverse to appellees for more than fifteen years before the commencement of this suit, and • plead and rely upon time as a bar to the action. They insist ■ that a joint suit can not be maintained against them, claiming as they do severally different lots, separated by distinct metes and bounds, and plead to the jurisdiction of the Louisville Chancery Court. And finally they allege that they purchased their respective parcels for valuable considerations, without notice of any defect in the title; that they entered in good faith, and made valuable and lasting improvements on said lots, for which they pray to be remunerated if it should be adjudged by the court that their titles are defective, and for that purpose made their answers cross-petitions.
The case was referred to the master to take an account of rents and profits, and of the value of lasting improvements made by the tenants, and report the result of his investigations to court, who made two or more reports, to which there -were exceptions by defendants. Finally judgment was rendered
A demurrer was filed to the petition, which was overruled, and it is insisted here by the learned counsel for appellants that the court erred in that ruling, because the petition fails to aver a demand or notice to surrender possession before the commencement of the suit; and 7 J. J. Marshall, 322, and 15 B. Monroe, 73, are referred to as authorities to sustain that position.
The case, as we suppose, in 7 J. J. Marshall intended to be cited is Harle v. McCoy. (Ibid. 318.) By an examination of that case it will be seen that McCoy contracted to sell the lot to Harle for which the suit was brought; Harle took possession under the executory contract, with the assent of McCoy, and was to pay him in two installments for the lot. In that case this court decided that one who enters on land under an executory contract for the purchase of it can not be evicted by his vendor, unless he shall by some act have converted his possession into a tortious holding, as by denying the title of the landlord, etc.
So in Smith v. Moberly and wife (15 B. Monroe, 70) it was shown by the proof that Smith entered into the possession of the land under a parol agreement with Moberly to purchase it; and this court held, as in the other case, that, as Smith entered lawfully, his possession was. not tortious until he had done some act tounake it so, or unless a notice to quit or a demand of possessipn had been made, and he had refused to surrender. This is the law in the class of cases referred to, and perhaps has been for time out of mind. We probably adopted it from
On motion of the defendants below the venue was in May, 1867, changed to the Jefferson Court of Common Pleas, where but few steps were taken — an answer filed, and a motion or two made by one of the attorneys for the defendants. A motion was then made by the attorneys for appellees to transfer the case to the Louisville Chancery Court, which the court sustained, and ordered the transfer to be made, to which ruling appellants did not except; but they now insist that the proceedings should have been by ordinary, and for that reason the judgment should be reversed.
So much of the answers as set up a claim for valuable and lasting improvements on the property sued for presented an equitable defense (Smith v. Moberly, supra); and if the suit had been brought in ordinary, the issues made on that part of the answers would have been properly triable in the manner prescribed in equitable proceedings; and for the trial of these issues it would have been proper to have transferred the case to the chancery court; and if the equitable defenses had been adjudged insufficient to defeat the action, the court should have referred the legal issue, of whether or not appellees were entitled to the possession of the land, to the decision of a jury, unless a trial by jury had been waived.
This suit, as we have before observed, was brought in equity; and therefore, unless a motion was made to transfer it to the proper forum to try the legal issues, a court of equity might properly proceed to try the cause; and if it be submitted, as was done in this case, without objection, errors as to the form of the proceedings are waived. (Frazer, &c. v. Naylor, 1 Met. 593" court="Ky. Ct. App." date_filed="1859-02-02" href="https://app.midpage.ai/document/frazer-v-naylor-7383367?utm_source=webapp" opinion_id="7383367">1 Met. 593.) But if there was any error in the court below as to the proceedings adopted in .the suit, by'failing to except to the ruling of the court of common pleas ordering a transfer of the case to the Louisville Chancery Court, that error was waived. (Section 12, Civil Code.)
It is stated by Stone, in his answer and cross-petition, that he released to the original purchasers all his title to lots Nos. 2, 3, 6, 7, 44, 45, 48, 49, 55, 54, 100, 101, 96, and 97, and does not assert any claim to these lots, or any of them, under the will of his grandfather, and admits that his mother joined her brother, Edmund S. Lampton, in the conveyance of lots 57, 58, 59, and 60 to the purchasers; but submits as matter of law to the court whether, as heir to his mother, who died before her brother, he was not, on the happening of that event, entitled to one moiety of said lots; but that question the court below very properly adjudged against him. Lots Nos. 6, 7, 12, and 45 he claims under deeds from other parties, and not under the will; and F. M. Minter sold lot No. 41 to Vanhice, and Stone undertook in writing that said F. M. Minter should convey the same when he arrived at twenty-one years of age, and that he acted as the attorney in fact of E. S. Lampton and wife to sell some few lots within the boundary of the eight acres held by said Lampton; and appellants insist that these acts on the part of Stone estop him from claiming any portion
As to those lots Stone joined his uncle in the sale of, and those he sold as his attorney in fact, he is estopped by his deeds; but the estoppel, we apprehend, extends no further than the conveyances. If he is estopped as to the others, it is not by deed, but must be by matter in pais; and we do not perceive how anything he has done can so operate. We know of no adjudged case in which it has ever been held that a party who joined in the conveyance of one distinct parcel of land, to which he had a contingent interest, to one individual on some consideration, or even without any consideration, would be estopped to set up claim to another separate parcel of land held by a different individual, to whom he had given no encouragement to buy, and perhaps may have been wholly ignorant at the time of any such transaction.
• If that doctrine were to prevail, it would be hazardous for the owner of real estate to sell any part of it unless he sold the whole. The doctrine has never been carried further than to estop the party from claiming property he had advised 02 encouraged. a2iother to buy, or being present and seeing one buy property to which he had title or some claim, and then failed to assert it, but acquiesced in the sale.
We can not concur in the views of counsel therefore that appellee Sto2ie has deprived himself by anything he has done of the right to claim an interest in all the lots except those he or his mother joined in the co22veyance of, and those he sold as attorney in fact of Lampton.
But it is objected that as each lot is held as a distinct and separate parcel by appellants respectively, a joint action can be maintained against thmn. In Dean, &c. v. English (18 B. Mon. 132) this court held that a misjoinder of parties can 2iot be taken advantage of by demurrer; and unless where such objection exists, either as to plaintiffs or defendants, the party
It is insisted that as appellee Stone did not join as plaintiff in the suit, but was a defendant, and failed to make his answer a cross-petition against the defendants in possession of the various lots, and failed to sue out process against them, the court below erred in granting relief to him.
The general rule in chancery practice is, that one defendant shall not have judgment against co-defendants except on cross-pleadings asking for relief, and alleging sufficient ground to authorize it, because otherwise the end of all pleading might be frustrated by adjudicating between associates and not antagonists. in court, in favor of a party who had not sought or even intimated a wish to obtain any such interference, and as to matters not only unlitigated, but never presented in any form for litigation. But this rule extends only so far as the reason for it applies. It does not apply to a suit in chancery
In this case the original petition sought a partition of the lots to the one half of which the plaintiffs asserted a title under the will of testator, and an account of rents and judgment for possession. Such judgment could not be appropriately rendered without finally adjusting the interest of the others claiming to be devisees. Stone in his answer prayed for such final adjustment, and as he will be concluded by the judgment, the appellants have no just cause to object, because they were not formally made defendants to a cross-petition, and especially as their answers to the original petition are as available to them against Stone as if they had been answers directly to his cross-petition, and they seem to have been filed with that view, and were during the progress of the case treated - as defenses to both claims, and no prejudice resulted to appellants thereby.
From the evidence in the case the conclusion is irresistible that E. S. Lampton died leaving no issue. One witness proves that the woman with whom he lived had the child by her first husband, whom Lampton took to live with him when he and her mother commenced cohabiting together; and a number of witnesses prove that they both said the child was not- his, in repeated conversations, commencing perhaps as early as 1831, before he had sold any lots in controversy, and always making the same declarations in relation to the parentage of the child, to the latest- period of his life, whenever he spoke on the subject. In passing upon the question evidence of the statements or acknowledgments of Lampton as to the relations which the individual sustained to him is competent. (1 Green-
But disregarding any statements made by decedent after he begun to dispose of the lots in controversy, the fact is satisfactorily established by other evidence that he died without issue; and it is much more questionable whether he ever wás, in fact, lawfully married. Even therefore, if the exceptions to the depositions had been overruled by the court, and the opinion overruling them excepted to, appellants would not have been prejudiced thereby, as the evidence was sufficient without such statements.
This brings us to the consideration of the main question in the case, and that is, What estate in the eight acres .of land •did E. S. Lampton take under the will of his father? All of the will that is necessary for the solution of the question has already been quoted. The words “ if he should die without •lawful issue” then the estate to go to his sisters, and words of like import contained in other wills, have been frequently construed by this court. The question arose in the case of Hart v. Thompson's adm'rs and heirs (3 B. Monroe, 482) on the construction of the following words in the will of Nathaniel Hart, sr.: “ My will and desire is that all my estate, both real and personal, be equally divided among my said nine children, if then living, or their lawful heirs if dead; and if either of my nine children should die without heirs of their body lawfully begotten, their part so allotted and given to them, as aforesaid, be equally divided among my other children then living.”
This will was made in 1788, and shortly thereafter probated. Simpson Hart, a son of the testator and a devisee, sold a tract of land allotted to him under the will, and afterward died -childless. In a controversy between a brother of Simpson Hart -and the purchaser about the land the purchaser contended that .under this clause of the will his vender took
After a review of a number of authorities on the question this court said: “Whenever there is, as in this case) a clear indication of an intention on the part of a devisor to pass a defeasible fee only to the first devisee, with a limitation over to others then living, at the death of the first devisee without issue or heirs of his body, so as to preserve his estate to his children, that such construction,should be given to the devise as to carry out the object and intention of the devisor, and as would effectuate the purpose of the devisee.” And it was adjudged that Simpson Hart took as an executory devise a defeasible fee, and, dying without issue, the estate passed to his surviving brothers and sisters.
That case was decided in 1843, and has been followed by this court in numerous cases since. In Daniel v. Thompson, &c. (14 B. Monroe, 533) the question was before this court on the construction of a similar provision of Clifton Thompson’s will, made in 1828, or rather to a codicil thereto made in 1831. In that case Judge Marshall, delivering the opinion of the court, the authorities, both English and American, are most elaborately reviewed; and, after referring to a number of cases decided previously in this state, it is said in none of these cases has an estate-tail been raised by implication upon the words “ dying without issue,” whether the first devise was for life or in fee, or without additional words, or whether it devised lands, or slaves, or personalty, or all by the same words.
Here we can not doubt that the testator, when he said if his son should die “ without lawful issue,” used the words in their plain and natural sense, intending thereby that if his
On the subject of rents, appellees’ title accrued when E. S. Lampton died, and rents commenced from that period. And the allowance for improvements is as favorable to appellants as they had a right to ask them; nor do we discover any error in the adjustment of costs.
Wherefore the judgment is affirmed.