Sutton v. Pollard, 96 Ky. 640

Sutton v. Pollard

96 Ky. 640 | Ky. Ct. App. | 1895

JUDGE GUFFY

delivered the opinion oe the court.

This action was instituted in the Garrard Circuit Court by B. D. Sutton and others against Elizabeth Pollard and others, for the recovery of one hundred and five acres of land in said county. Plaintiffs avered that they were the owners of and entitled to the immediate possession of the land, and assert claim under paper title, and also claim title by reason of more than thirty years adverse possession prior to the bringing of this action. Defendants filed answer, and in the first paragraph thereof denied plaintiffs’ title and right to possession of the land. In the second paragraph they pleaded and relied upon a judgment rendered in a suit brought in September, 1889, by the defendant Pollard against Eliza J. Sutton, and the plaintiff W. M. Sutton, for the recovery of the land in contest, which judgment was against the defendants therein for the *644recovery of tlie land, from which - judgment the defendants therein appealed to this court, and the judgment was affirmed.

The appellants demurred to both paragraphs of the answer, which demurrers were overruled by the court. Plaintiffs filed a reply and also an amended reply, to which defendants filed demurrer, which demurrer was sustained by the court, and plaintiffs failing to plead further, the petition was dismissed by the court and judgment rendered against appellants for cost. Prom this judgment plaintiffs have appealed to this court.

On motion of defendants a considerable portion of plaintiffs’ petition was stricken out, which was error. If the allegations of plaintiffs are true as to the actual adverse possession held by them and those under whom they claim, they were entitled to recover the land sued for, unless the judgment pleaded by defendants is a bar to plaintiffs’ right to recover. It is clear that a vendee who enters under a deed, whether defective or not, can hold and claim adversely to all the world, including his own vendors. (Winlock v. Hardy, 4 Litt., 274; Grossom v. Donaldson, 18 B. M., 239; Croxall v. Shererd, 5 Wallace, 268.)

It is well settled law that actual, adverse, peaceable possession of land for thirty years gives perfect title. (Marshall, &c., v. McDaniel, 12 Bush, 378; Logan and wife v. Bull, &c., 78 Ky., 607; Chiles v. Jones, 4 Dana, 483 ; 13 Am. & Eng. Enc. of Law, p. 694.) After title is acquired by adverse possession, the holder thereof, if from choice or by force or fraud he loses the actual possession, may recover the same by suit in the same *645manner as if he had perfect paper title. Having once acquired the title, he can only be divested of it by due process of law. If it be conceded that the statute did not run against Mrs. Dales until the death of her husband, which defendants aver was in 1852, yet more than thirty years had elapsed before the institution of the suit of Pollard against Elza J. Sutton, &c.; so that if the possession of Irvine and Sutton had been actual and adverse during all of that time, the devisees of Charity Irvine had a perfect title to the land. Appellees, however, insist that the judgment of Pollard against Sutton divested these appellants of all title.

It may be that, under the ancient common law, a judgment against the life tenant would bind the remainderman, and in some of ' the States it may be so held now, for in some States ejectment suits may be brought to settle the title to land, whether or not the defendant is in possession. ' In such cases if the remaindermen were parties to the suit, the judgment would bar their claims, but under the law of this State ejectment suits only lie against those in possession. The right of possession is the real issue in such actions, and does not always involve the question of fee-simple tifie. It is a familiar rule of law that no one can be deprived of his property without due process of law. A judgment is only conclusive of the question involved, and binds only parties and their privies. Eliza J. Sutton had only a life estate in the land in contest, holding under the will of Charity Irvine, and entitled to the- possession thereof during her life and in the actual possesion. The effect of the judgment relied on was to divest the defendants therein of the *646possession, and perhaps oí the life estate of Eliza J. Sul ton. Nothing else was legally in issue in that suit; hence, after the death of Mrs. Sutton, the right to the possession of the land accrued to these appellants the same as if no such suit bad ever been instituted. The right of entry and possession alone are in issue in such a suit. (Chiles v. Jones, 4 Dana, 483.)

By the common law a judgment in ejectment was no bar to another suit between the same parties for the same land. (Speed v. Braxdell, 7 Mon., 570.) This rule, to some extent, has been modified by the act of 1825, but that modification does not affect the rights of appellants in this action.

It seems to us that the court below erred in overruling appellants’ demurrer to the second paragraph of defendants’ answer, and also erred in sustaining defendants’ demurrer to appellants’ reply; hence, the judgment of the court below is reversed and cause remanded for further proceedings consistent with this opinion.