Bankston v. Crabtree Coal Mining Co.

JUDGE HAZELKIGG delivered the opistion oe the court. On April 13, 1871, Jamos H. Roden conveyed the land in controversy »in this case to Geo. W. Woodruff, who took immediate possession, and under whom the appellee now asserts title. The wife of Roden, however, was the real owner of the land, and was in fact paid the purchase money. She did not join in the deed save that in the attesting clause we find this language : “ In testimony whereof, the said James II. Roden, together with Helen C. Roden, his wife, who hereby relinquishes all right to dower in and to the land conveyed in this deed, have hereunto subscribed,” etc. She signed and acknowledged the deed with her husband. In 1883 James H. Roden died. His wife subsequently married Bankston, and in July, 1891,] Bankston and his wife instituted their action in ejectment for the land in question. The court below dismissed their petition, upon the ground, as we presume, that their cause of action was barred by limitation, and whether it was or not is the sole question necessary to be determined on this appeal. Section 1 of article 1, chapter 71, General Statutes, provides that “ an action for the recovery of real property [458] can only be brought within fifteen years after the right to institute it first accrued to the plaintiff', or to the person through whom he claims.” Section 2 of the same article provides that “ if at the time the right of any person to bring, an action for the recovery of real property first accrued, such person was an infant, married woman, or of unsound mind, then such person, or the person claiming through him, may,’ though the period of fifteen years has expired, bring the action within three years after the time such disability is removed.” It is evident that the entry of Woodruff' was hostile to the title of the female appellant and his holding adverse to her. But for her disability she could have asserted her cause of action immediately upon his entry. This is true because she did not join in the grant, and as to . her the deed of her husband was of no effect. That deed did not convey any right to the vendee. Since the statute of 1846, the husband has had no vendible interest in his wife’s lands, and as the deed of 1871 must be regarded as his deed alone, the wife’s right of action accrued at once. In Johnson, &c., v. Sweat, &c., 81 Ky., 392, it is said: “ Prior to the adoption of that statute (1846) it had been held that the husband could sell and convey the land of the wife so as to be operative during the life of the husband, and consequently that in such case the wife’s right of action did not accrue until the death of the husband.” (Citing Miller v. Shackleford, 3 Dana, 292.) See also Butler, &c., v. McMillan, &c., 88 Ky., 417. But although her cause of action accrued in April, 1871, yet she was under the disability of coverture, and perhaps of infancy, and therefore she may institxite her action in [459] spite of the lapse of fifteen years, provided she does so within three years after, the time when her disability is removed. This removal was in 1883. And however we may compute the time, whether we give her fifteen years after 1871 and then three years thereafter, or limit her to fifteen years as in other cases, provided her disability was removed as much as three years before the end of the fifteen years, as would seem to be the correct method of computation, is immaterial. Her right of action is. barred in either event. Suppose, however, that we regard the conveyance as one in which the wife joined with her' husband within the meaning of section 6 of the article and chapter referred to. That section • provides that “ if a woman, after she arrives at the age of twenty-one years, join with her husband in the-conveyance of her lands or chattels real, and acknowledge the conveyance before an officer authorized to take her acknowledgment of the conveyance, no action shall be brought by her. for the recovery of the lands or chattels real mentioned in such conveyance, unless the action is commenced by her within three years after she becomes discovert.” If the judgment below in bar of the appellant’s rights was based on the limitation provided in this section, it was because the court found, as a matter of fact, that the wife had reached her majority when she executed the deed of April, 1871, and we think the evidence is abundant to support the finding. We have her statement in June, 1891, before she began asserting this claim, that she was then forty-two years old. We have also the positive recollection of her relatives and of her neighbors, who fix the date by other circumstances which were impressed on [460] their minds beyond doubt, that she was born December 25, 1849. Upon the removal of her disability therefore in 1888, she had three years only within which to have instituted her suit. In any view of the ease, therefore, the wife’s cause of action was barred by limitation, and the judgment is affirmed.