Smith v. Cornett

124 Ky. 63 | Ky. Ct. App. | 1906

Opinion of the Court by

Chief Justice Hobson—

Reversing.

John H. Smith died a resident of Harlan County in the year 1862, the owner of 500 or 600 acres of laud on Poor Pork. He had eight children, seven of whom survived him. One daughter, Stacy Short, the wife of John B. Short, died shortly before his death, leaving an infant child, Emily Short. Jonathan Cornett, who had married one of his. daughters, after his death qualified as. his administrator, and moved into the dwelling" house where he had lived. Cornett bought out six of the children and received deeds, from them for their interest in the tract of land. He also made a trade with John B. Short for the interest which belonged to his. infant daughter Emily, who was at the death of her grandfather five or six years old. On October 27, 1869, John B. Short executed to Cornett the following writing: “This is. to show that Jonathan Cornett, administrator of John IT. Smith, deceased, has settled with me in full as guardian of Emily Jane Short, my daughter, in full of all -the interest she, the said Emily Jane, had in the estate of said John H. Smith, Sr., the said John H. Smith being the grandfather of said Emily Jane, both real and personal and said Jonathan C'ornett is hereby fully discharged from any liability to me or my daughter. Given under my hand this 27th day of October, 1869.” Cornett remained in possession of the land, and when, some years later, Emily married Jeff Hoskins., her .husband had an interview with Cornett in the presence of her father, in which the father stated that he had sold her interest in the land to Cornett, and that she was to malee him a deed when she became of age, but no- deed was made-. John B. Short died about the year 1886. In the fall of 1902 Cornett applied to Emily and her husband to make him a deed for her interest in the land, but. only agreed to give her $50 to make it. She declined to accept this, and sold her interest in the land to J. B. Smith for $650. Smith thereupon filed this suit against Cornett for a partition of the land. Cornett pleaded limitation and also relied on the statute against champerty. The circuit court dismissed Smith’s petition and he appeals.

Cornett, testified that John B. Short was appointed guardian- of his daughter, but no record of the appointment is produced. Hoskins testified that, he was not appointed, or that there was nothing on the record to show that he was. Cornett, also testified that he paid Short $130 for Emily’s interest in the land, and that- Short gave him a. title bond, but. the bond was not produced, nor is its. loss- satisfactorily shown. There is no evidence in the record as to- what was done with the $130 which Cornett testifies to paying Short. In view of all the fácts in the record, we think it may be concluded that Short simply acted as the natural guardian of his daughter in the transaction referred to. He is now dead, and it is a wise rule that, a party cannot testify for himself as .to a transaction with one who is dead. No ratification of the acts of Short is shown by the record, and the questions to be decided are whether the action is barred by limitation and whether Smith’s purchase was champertous; for the infant was not bound by the acts of her father in selling her land, and before she became of age she was married and could only dispose of her land by deed executed pursuant to the statute:

As to the matter of limitation, in Pope v. Brassfield, 110 Ky. 137, 22 Ky. Law Rep. 1613, 61 S. W. 5, on precisely the same facts, we said: “Though the infant Mary E. Pope, now M/rs. Bain, was not married when the bond was given and appellees entered upon the land, they entered under a contract that she would convey, and this obligation was not broken until she became, of age. The possession of appellees was not, therefore, adverse to her until she was of age. Before she became of age she married, and when she did not convey after her majority, and the possession of appellees became- adverse, she was a married woman, and the statute did not run against her. ’ ’ Mrs. Hos-kins. was born in 1857. She was married in 1874. Cornett, according to his own evidence, evidently held the land under1 the voidable purchase from her father, expecting her to make a deed when she became of age, and his possession was not adverse to" her until she was- of age. When she became of age and his possession did become adverse in 1878, she being a married woman, the statute did not run against her. Ky. St. 1903, section 2506. And 30 years had not elapsed when the action was. brought and so the 30-year statute has no application. Ky. St. 1903, section 2508. She remained under the disability of coverture at the time the action was brought. We therefore conclude tliat the action is not barred by limitation.

As to the deed to Smith being champertous, the rule is that one who is in possession of land as a pur - chaser from an infant does- not hold adversely to the infant within the meaning of the champerty statute, and his possession does not render void a conveyance by the infant to another after he arrives at age. Moore v. Baker, 92 Ky. 518, 13 Ky. Law Rep. 724, 18 S. W. 363; Baley v. Deakins, 5 B. Mon. 161.

Judgment reversed, and cause remanded for a judgment as herein indicated.