154 Ky. 1 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
Dan. T. Wilson filed suit in tlie OMo Circuit Court against L. S. Hoover and others, in which he sought to
The pleadings are quite voluminous, and the issue is .very much complicated by the injection into the record of much irrelevant and redundant matter. This land was a part of a tract of 262 acres owned by Robert Wilson. In Ms lifetime, he sold off forty acres, and in 1870 died the owner of the remaining 214 acres. He left a will by which he gave his widow a life estate in all of said land during her widowhood, with remainder to ten of his thirteen children, naming them. His widow never married again, and died in March, 1894. A few years before her death, she sold a life interest in a part of
Several of the Wilson children, to whom their father devised a remainder interest in the farm, sold their undivided interest to their brother James, and the record is reasonably clear that, in this way, he acquired a five-tenths interest in said land. He owned, by devise, a one-tenth interest, so that he owned at least six-tenths of said land. He sold and conveyed his interest to Joseph Ford. Ford, it'appears, purchased another interest, giving him at least seven-tenths of the entire tract. Two of the other Wilson children sold their interest to one Job S. Arnold, and Arnold sold these interests, so acquired by him, to appellant, Dan T. Wilson, describing the land covered by his conveyance as his undivided interest in the Eobert Wilson farm. In 1879, Joseph Ford conveyed to his children, ten in number, all of his interest in the Eobert Wilson lands, but did not describe in the deed the extent of such interest. There is no record evidence that Catherine Wilson ever disposed of her one-tenth interest in her father’s estate. She married one Grolson Phelps, by whom she had two children, J. E. Phelps .and Zelma Phelps who married one Gleorge M. Tucker. She died in 1910 without ever having asserted her right to this property, although she lived more than forty years after the probate of her father’s will devising it to her. There was no dispute between the parties to this litigation, at the time the petition was filed, as to the interest of any of the Wilson heirs in or to said land, for at that time appellant, Dan T; Wilson was not claiming any interest through, or by virtue of, any purchase from any one of the Wilson heirs. On March 10,1911,' he purchased from Zelma Tucker and her husband an undivided one-half interest in one-tenth of said land, which her mother, Catherine Wilson Phelps, should have received in the division of her father's estate. After his purchase of this undivided one-half of one-tenth he filed an amended petition asserting claim to this interest. J. E. Phelps who was made a defendant answered claiming an undivided one-half of one-tenth interest in the Eobert Wilson land, as heir-at-law of his mother, Catherine Wilson Phelps; he
Each of the Ford children owned an undivided one-tenth of seven-tenths, or seven one-hundredths of the Robert Wilson tract. Appellant claimed, in his original petition, the interest of N. H. Ford, Lucinda Myers and E. D. Ford, twenty-one one hundredths in all. Appellees conceded that he owned the E. D. Ford interest, but asserted that it was not an undivided interest, but that, in the division made in 1890, his interest had been cut off and allotted to him, and the deed, under which appellant asserts title to this interest calls, not for an undivided interest but for twelve acres and this twelve acres is described by metes and bounds; hence, the only controversy is over the N. H. Ford and Lucinda Myers interests.
Appellant claims that on March 5,1888, he caused the undivided interest of N. Ii. Ford in the Wilson and other lands which he had inherited from his father, to be sold under execution in satisfaction of a judgment debt, and that he, at said sale, became the purchaser of the interest of N. IT. Ford in the Wilson land. He took no further steps to invest himself with title to this interest until 1910, when, on September 13, he caused the sheriff of Ohio county to make a deed to him for said interest, under and by virtue of his purchase. Appellee, Hoover, insists that, at the time of said sale, he forbade the sale of the land, claiming that he had theretofore purchased it of N. H. Ford and was then in possession of same. The conduct of appellant rather confirms the claim of appellee, Hoover, for, while admitting that he knew that Hoover was, during all this time, living upon and claiming the land, appellant took no steps, for more than twenty years, to invest himself with paper evidence of title to the property. We are not limited, however, in determining appellant’s rights in this particular, to a consideration of the claim of appellee, Hoover, and this defense may be waived, for, upon examining the record, we find that the sheriff’s sale, under which appellant claims to have acquired title to the interest of N. H. Ford in this land, was made on March 5, 1888, and on February 2, 1889, he sold and
Appellant’s claim to the Meyers tract arose in this way: He alleges that his son-in-law, J. E. St. Clair, bought the Myers interest in September, 1889, and thereafter sold and transferred it to him by assignment, and he procured a deed for this tract on June 12, 1911, after the institution of this suit. This claim occupies very much the same position as does his claim to ownership of the N. H. Ford tract, for St. Clair in 1892, two years after the division of the land between himself, Hoover, and E. D. Ford, sold and conveyed his interest in the Eobert Wilson land to J. H. Wilson, who was the oldest son of Dan., and J. H. Wilson took possession under this conveyance and he and those claiming under him have held it ever since. Now, if it be conceded that St. Clair did, in fact, buy the Myers interest, it was evidently taken into account at the time of the division, and when he sold his interest in the Eobert Wilson land, this Myers interest passed under his deed, and Ms father-in-law acquired nothing by reason of the assignment and transfer of the title bond to him many years after St. Clair had parted with any interest that he had in this land. The record, which appellant, his son, and son-in-law made at a time when there was no question of ownership involved, is a complete bar to the claim attempted to be asserted here on the part of appellant to the interest of N. H. Ford and Lucinda Myers in the Eobert Wilson farm.
The only question giving us any concern is whether or not limitation had run against Catherine Wilson
“While the general rule is as stated, it is well settled that one tenant may hold adversely to his co-tenant, and’ if his possession is continued uninterruptedly for the statutory period he will acquire an indefeasible title; and this is true whether the original entry was with intent to hold adversely or whether the entry was as tenant in common. ’ ’
Gillaspie v. Osburn, 3 A. K. Marsh., 77 and Larman v. Huey, 13 B. Mon., 436 are cited by the author in support of the text.
As to the necessity of knowledge or notice of the fact of adverse holding, the same author, in 1 Cyc., 1073, citing in support of the text Gossam v. Donaldson, 18 B. Mon., 230, and Ward v. Ward, 15 Rep., 706, 25 S. W., 112, says:
“In order to constitute a disseizin of a cotenant the fact of adverse holding must be brought home to him either by information to that effect, given by the tenant in common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the eotenant that an adverse possession and disseizin are intended to be asserted. Actual verbal or written notice is not, however, necessary; adverse possession may be inferred from outward acts, open and notorious claim of ownersip, and exercise of exclusive right.” * * *
In Bloom v. Sawyer 121 Ky., 308, an owner of an undivided three-fourths of a tract of land died, leaving a widow to whom dower was set apart. The widow conveyed her dower right to one who conveyed it to another, and he conveyed by deed, without warranty, the whole tract in fee simple. The grantee in the latter deed took 'possession of the whole tract and continuously claimed •the property adversely as his own. The court there
There is no question that, at the time this land was divided in 1890, Hoover, St. Clair, and E. D. Ford were in possession and claiming all of it, and there is no evidence whatever to the effect that, at that time, any of them knew that Catherine Wilson Phelps owned an interest in this land. So that, at the time the division was made, it is undoubtedly true that they were claiming this land, whether they, in fact, owned it or not. It is likewise true that, under such claim of ownership, they proceeded to and did divide and partition it among themselves, causing it to be surveyed and each exercising such acts of ownership as one might exercise over land belonging to him. With the exception of E. D. Ford, they built upon it, cultivated it, cut timber from it, paid the taxes on it, and publicly and openly claimed as their own, and it was recognized as such by persons living in that community.
Were these acts on the part of appellees, and their predecessors in title, sufficient to put Catherine Wilson Phelps upon notice that their claim was hostile to hers? We are of opinion that they were. Appellees’ possession was certainly as notorious and open as it could have been made, without giving to Catherine Wilson Phelps actual notice that they were claiming the land and were not recognizing her right to an interest in it. As a matter of fact, there is no evidence whatever that she, at any time, asserted or claimed to have such right, and her conduct leads rather to the conclusion that, at some time during the twenty years following the probate of her father’s will and the division of this land, she had sold or disposed of her interest therein. Having lived in that vicinity and being of sound mind, her conduct is difficult of explanation upon any other theory, but whether she had sold it or not, we are of opinion that the conduct of appellees is such as must have apprised a person of ordinary intelligence that they were not recognizing the right or title of any one else in and to those portions of the land in controversy, which were held by them. This being true, we would hold that, were the claim of ownership now being asserted by Catherine
Judgment affirmed.