Rose v. Ware

Opinion op the court by JUDGE BARKER Affirming. Appellee, E. J. Ware, instituted this action to recover a judgment on a note of appellant Billie Bose, dated May 9, 1899, and due one day thereafter, for the sum of $9,000. — 426 — Appellant, in her answer, admits signing and delivering the note, but sets up as a defense: That it was executed and delivered pending a- negotiation between her and appellee looking to the purchase by her of a farm owned by him. That the terms of the sale had been agreed upon, subject! to the condition that appellee’s title was found to be va,lid, and was approved by appellant’s agent. That appellee’s title was found to be defective by her agent, and was rejected by him. That the defects in the title were: First, that he had only a possessory title, at best, to any of the* land; and, second, the heirs at law of Parmelia M. Winston, the wife of a remote vendor, owned one-fourth of it; third, that Mary E. Duffy, the wife of another remote vendor, had an inchoate right of dower in the whole tract; fourth, that Wiley Taylor, still another remote vendor, had some interest' or so claimed. That appellee, knowing his title to be defective, fraudulently concealed that fact from her, falsely representing that he had an indefeasible title to the land. That these fraudulent representations, and the assurance that the note would not bind her for its payment, unless the sale was finally consummated, induced her to deliver it to him. Wherefore she prayed for a surrender up and cancellation of the note sued on. Upon the filing of this answer the case was transferred to equity upon the motion of appellant. By an amended answer, Mary E. Winston, T. M. Powell, Mary Powell and Eliza Powell, the heirs at law of Parmelia Winston, were made parties, and called upon to assert any claim they might have to the land. Appellee, by reply, denied all of the material allegations of the answer, and pleaded affirmatively that he was possessed of an indefeasible title to the land, and that he and his grantors had been in the continuous adverse possession of it for more than thirty years last past. By a re — 427 — joinder the allegations of the reply were controverted. It is not necessary to set out the allegations of the various pleadings in this case at greater length or detail. For all practical purposes the issues were made up along the lines thus indicated. Afterwards the heirs at law of Parmelia M. Winston filed their answer, which they made a cross-petition against appellee, claiming through their ancestor, Parmelia M. Winston, to own one-fourth of the land involved in this litigation. By an agreement entered of record it was stipulated that the same issues made between E. J. Ware and Billie Rose should be considered to exist between appellee and the cross-petitioners, and that all the evidence taken in the case should be read on these agreed issues. The first question to be decided is whether the transaction which took place between appellant and appellee on the 9th day of May, 1899, was or was not an executed contract. The negotiations for the sale of the farm had been carried forward fitfully for eight months or a year prior thereto. In these negotiations appellant had taken little or no part personally. Her interest seems to have been looked after by her mother, Mrs. M. I. Donnelly, who was anxious that the purchase should be made, and who was fully authorized to speak for her daughter.'in the negotiations between her and appellee. There is a complete failure om the evidence to show any fraud or overreaching upon the part of appellee, or to put Mm in the attitude of being unduly anxious to make the trade; nor is there any foundation in the record for the charge that he knew or suspected there was any defect in Ms title. Appellant’s mother, by writing signed by her, offered to purchase the farm from appellee at the price of $60 per acre. Both appellant and her mother state that, while they knew this was a high price, they were willing — 428 — 'to pay it. On May 9, 1899, appellee called at the house of appellant, where he and Mrs. Donnelly and the appellant consummated the pending negotiations by his executing and delivering to appellant a deed for the land, and her executing and delivering to him the note sued on. The evidence upon this branch of the case is reduced to the testimony of appellee on the one hand and Mrs. Donnelly, the agent of appellant, who negotiated the trade, on the other. Appellee testifies that it was absolute and unconditional. Mrs. Donnelly testifies that it was conditional upon the approval of appellant’s agent'. The burden of establishing by a preponderance of the evidence that the sale was conditional was upon appellant. Upon this issue of fact the chancellor decided adversely to her, and we are not able to say, from all the evidence in the record, that he erred in so doing. We come now to a consideration of the question of defects in appellee’s title. In the year 1847, Parmelia A. Duffy, the wife of Col. Francis Duffy, died, owning a body of about 920 acres of land, of which the farm involved in this litigation was a part. She left surviving her a husband and four children, F. M. Duffy, Michael E. Duffy, P. O. Duffy, and Parmelia M. Duffy. After the death of his wife, Col. Francis Duffy, remained: in possession of her real property, as tenant by curtesy, until his death, in 1858. On the 24th day of May, 1852, Dr. Thomas L. Winston intermarried with Parmelia M. Duffy, one of the four heirs at law of Parmelia A. Duffy, deceased, and in 1858, immediately after the death of his father-in-law, purchased the undivided interest in his three brothers-in-law in the real estate left by their mother, and he and his wife became the owners of the whole; he owning three-fourths and she owning one-fourth thereof. In the same year he sold the whole tract — 429 — of 920 acres to one Wiley Taylor for the sum of $44,000; $11,000 of which was paid, cash, and the balance to be paid at stated intervals thereafter. For the land thus sold he executed and delivered to his grantee a bond for title, conditioned, upon the final payment of all the purchase money, to convey the land by deed of general warranty. Upon the sale thus made to him Wiley Taylor entered and took possession, and he and his descendants and vendees; near and remote, have held and occupied the land from the time of sale until the institution of this action. It can not be questioned that Dr. Thomas L. Winston undertook to sell all of the land owned by himself and wife as tenants in common, or that the vendee took possession of it and held it as his own, believing that when he paid the purchase money he would receive a valid deed of conveyance therefor. After thus taking possession, Wiley Taylor sold 100 acres of the land to one Dr. Grady, and á small tract of it to the Louisville & Nashville Railroad •Company. In 1860 he died intestate, and the land descended to his children, of whom he had several. In 1862 it was partitioned among his children, who took possession of their respective portions. After his death his son W. H. Taylor administered his estate, and paid off the balance due of the purchase price, the last of the notes being taken up in January, 1863. In 1865 Parmelia M. Winston died, leaving two daughters — Mary E. Winston and Bettie Winston. The latter, having married one Powell, afterwards died, leaving three children — T. M. Poweil, Mary Powell, and Eliza Powell — who, together with their aunt, Mary E. Winston, constitute the cross-petitioners in this action. In 1895 Dr. Thomas L. Winston died, On the part of appellants it is claimed that the possession of Wiley Taylor was not adverse, but amicable, to Par — 430 — melia M. Winston, and, as the sale by her husband to him did not pass her title, at her death she was in possession, and her husband became entitled to a life estate by curtesy, which at once vested in his vendee by virtue of the sale in 1858, and therefore no cause of action ever accrued to Parmelia M. Winston, or her heirs at law, until the death of Dr. Thomas L. Winston in 1895, they being remaindermen during that period. There would be much force in this contention had the sale by Winston to Taylor taken place prior to the act of 1846, for before the enactment of that statute the husband had a vendible interest in his wife’s land, which he could sell, and which could be sold for his indebtedness, and therefore when he alone undertook to sell his wife’s land, his life estate passed to his grantee, and neither his wife, nor her heirs at law after her death, had a right of action until the termination of the life estate by the death of the husband. But even then, when the wife joined the husband in the sale, whether her act was valid or invalid, the vendee who took possession under the deed was construed to hold adversely to the wife, and the 30-year statute at once commenced to run against her, and continued to run against her heirs after her death, without regard to the question of disability. This principle is established by the cases of Medlock v. Suter, 80 Ky., 101, 3 R., 587, 763; Mantle v. Beal, 82 Ky., 122, 5 R., 889; Bradley v. Burgess, 87 Ky., 648, 10 R., 701, 10 S. W., 5. Since the act of 1846 (Laws 1845-46, p. 42, c. 368) a husband has had no vendible interest in his wife’s land, and if he undertakes to sell it in fee simple, with or without her joining in the sale, and the purchaser takes possession thereunder,.then the wife’s right of action immediately accrues to her, and the 30-year statute of limitation commences to run against her, and continues, in case of her — 431 — death, to run against her heirs at law, without reference to any disability; and, when the statutory period has expired, bars all right of recovery. In the case of Bankston v. The Crabtree Coal Mining Company (95 Ky., 455, 16 R., 15), (25 S. W., 1105), it is said: “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 land, and, as the deed of 1871 must be regarded as his deed alone, the wife’s right of action accrued at once.” In the case cited the 30-year statute of limitation was not involved. The opinion is quoted from as establishing the principle that since the enactment of the statute of 1846 a vendee taking possession of the wife’s land under a sale by the husband holds adversely to her, and she has at once a right of action against him. In the case of Johnson v. Sweat, 81 Ky., 394, 5 R., 358, it was held that where, since the act of 1846, the husband alone-sold the wife’s land, she had at once a cause of action against the vendee who took possession under the sale,, and the 30-year statute commenced to run. In this case the-30 years not having expired, the claim of the wife was held, not to be barred; but the principle above stated was fully determined. In the ease of the Louisville & Nashville R. R. Co. v. Thompson (105 Ky., 190, 20 R., 1110), (48 S. W., 990), the husband, D. B. Thompson, in the year 1856, by a writing, without the consent or permission of his wife, gave the Louisville & Nashville Railroad Company the right tó build its Knoxville Branch Road through the center — 432 — of the wife’s land. In 1897 the husband died, after which time the wife instituted an action for compensation. The answer, among other things, pleaded the 30-year statute of limitation. In considering the validity of this plea, the court reviewed and discussed nearly all of its former decisions relative to it, and said: “In the case at bar it is claimed in the answer, and not denied in the reply, that appellant held and claimed adversely to the appellee for more than 40 years before the institution of this suit; and, besides, the proof conduces to establish the same fact. It therefore follows that there had been an actual adverse possession, and it-seems clear from the statute, as well as the decisions of this court, that appellee’s right to recover was absolutely barred by limitation.” The court further said, in commenting on the cases bearing on this point: “The question decided in the last-named case (Gregory’s Heirs v. Ford, 5 B. Mon., 471) was under the law as it existed prior to the act of 1846, and is not at‘all applicable to the case at bar.” The case of Bransom v. Thompson, 81 Ky., 387, 5 R., 359, must not be understood as conflicting with Johnson v. Sweat, Id., 392, decided three days later, for there no question of limitation arose, as 30 years had not elapsed, and the only question before the court was whether the husband was entitled to curtesy on the facts shown, under the construction of the statute previously made in Carr v. Givens, 9 Bush, 679, 15 Am. Rep., 747. It is urged by appellants that Dr. T. L. Winston and his wife were residents of the State of Tennessee, which State, from 1861 to 1865, was a part of the Confederate States, and at war with the Unitea States, and that during this period no right of action existed in Mrs. Winston; and that, she having died in 1865, pending the war, no right of action had accrued to her up to the time of her death, and — 433 — for this reason the statute did not apply to her. In the case of Stillwell v. Leavy, 84 Ky., 379, 8 R., 321 (1 S. W., 590), this court said: “No disability of coverture, of infancy, or by reason of the existence of war between the claimant’s country and that of the defendant, or any other ‘disability whatever,’ can save the right to bring an action for the recovery of real property adversely held for a longer period than thirty years from the time the right of action first accrued to them.” From these cases we deduce the. rule that no disability whatever will prevent the running of the 30-year statute of limitation if a right of action would have existed in the claimant but for the disability. It is also contended by appellant that, inasmuch as Df. T. L. Winston and his wife were tenants in common, the husband’s vendee, Wiley Taylor, was also a tenant in common with the wife, and therefore his occupancy of the land thus held must be construed as amicable, and not adverse. It is true that the general rule is that the holding of one tenant in common is never construed to be adverse to his co-tenant alone from the fact that he is the sole occupant of the land; but it is also true that a tenant in common ' may so act with reference to his co-tenant as to amount to an ouster, and when this happens his holding will thereafter be adverse, and not amicable, with reference to his co-tenant. In the case of Gillaspie v. Osburn, 3 A. K. Marsh, 77, 13 Am. Dec., 136, it is said: “The relations between tenants in common, or even between joint tenants, is not such as to estop one co-tenant from acquiring and holding the possession adverse to another. It is true, where one tenant in common or joint tenant enters generally, it will be presumed to be for the purpose of acquiring — 434 — and holding possession for the benefit of his co-tenant as well as himself; but this is a presumption of fact which may be repelled by other evidence.” In the case of Larman v. Hughie’s Heirs, 13 B. Mon., 437, it is said: “That one tenant in common may thus acquire an adverse possession is decided in the case of Gillaspie v. Osburn, 3 A. K. Marsh., 77 [13 Am. Dec., 136], and follows from the concessions made in numerous cases that even a lessee or actual tenant, though taking possession under his landlord, may convert this friendly into an adverse possession.” In the case of Call v. Phelps’ Adm’r (20 R., 507), 45 S. W., 1053, it is said: “It can not be disputed as a principle of law that the possession of one of several joint tenants is the possession of all, and that the statute, therefore, does not run in favor of one against the others, unless there be an adverse holding; but one tenant may so enter and hold as to render the entry and possession adverse, and amount to an ouster of his co-tenants, and, if one is in the possession of and claiming the entire property by deed, then the holding is adverse, and the limitation begins to run when he so takes possession” — citing Greenhill v. Biggs, 85 Ky., 155, 8 R., 825, 2 S. W., 774, 7 Am. St. Rep., 579; Riggs v. Dooley, 7 B. Mon., 236; Russell’s Heirs v. Marks’ Heirs, 3 Metc., 38; Gossom v. Donaldson, 18 B. Mon., 230, 68 Am. Dec., 723. In the case of Chambers and Others v. Pleak, 6 Dana, 426, 32 Am. Dec., 78, the court says: “But it has been deter-* mined in the case of Doe v. Prosser, Cowper, 217, and other cases collected in Cruise’s Digest, . . . that the possession for a long period — as thirty-six years or more — by one co-tenant in common or joint tenant, without any account, or demand made, or claim set up by his co-tenant, was a sufficient ground for the jury to presume an actual ouster.” The question of ouster is always a question of — 435 — fact to be determined by the jury, and it may be inferred from the facts proved. The entry of a person under a conveyance which purports to convey the whole property is equivalent to an express determination upon the part of the grantee that he enters claiming the whole to himself. The receipt, for a long period of time, of all the rents and profits of a tract of land, is a fact which may properly be admitted in evidence before the jury to assist them in determining whether there has been an ouster. That one tenant in common has been in possession for a great number of years without any accounting to his fellow commoners is proper evidence from which the jury may infer an adverse possession. In some instances such possession has been regarded as raising a presumption of law which the jury are not at liberty to resist. An exclusive possession under a claim of title for 40 years, while the other tenants resided in the same county, and failed to assert any claim to their property, warrants the assumption of an actual ouster. Freeman on Co-Tenancy & Partition, sections 224-232, inclusive; Buswell on Limitation & Adverse Possession, sections 296-302, inclusive; and note in Gillaspie v. Osburn, 13 Am. Dec., 136. Considering Wiley Taylor and Mrs. Winston, the wife of his vendor, as tenants in common, we think the evidence in this case clearly shows an ouster of her by him, and therefore a right of action in her against him. for this wrong. The bond for title shows that he purchased, or aileast attempted to purchase, the land in fee simple. He paid $50 per acre for it in 1858. Appellants claim it is not worth over $35 per acre now, although it is in close proximity to a thriving town, which has grown up since 1858. After getting possession, he immediately sold off parts oí it, to the exclusion of the rights of his co-tenant. He in no — 436 — manner recognized her rights, or accounted to her for rents or profits. After his death his children took possession of it as a part of his estate, and partitioned it among themselves. The deposition of W. H. Taylor, who was the son and administrator of the estate of Wiley Taylor, shows —-’and he is not contradicted — that the possession by his father of the land was notorious, open, and continuously adverse from 1858 until his death, in i860; that he claimed to be the exclusive owner, and acted as such in every particular, exercising absolute dominion over it, and accounting to no one for any rents or profits; that this state of affairs continued with reference to the land, after his death, by his children and their vendees, near and remote, until the institution of this action — more than 40 years; that during all this time he had never heard of the claim of the cross-petitioners or that of their mother. We can not conceive of any act, whicll would constitute an ouster by one co-tenant of another, short of physical violence, which has not been shown to have been done by Wiley Taylor, his descendants and vendees, with reference to the land in question; and we are clearly of opinion that Parmelia M. Winston had a cause of action against Wiley Taylor, and against his descendants and vendees in her lifetime, for the recovery of her interest in the land involved in this litigation, and that, therefore, the 30-year statute commenced to run against her despite the disability of coverture, or the existence of the war between the States, and continued to run against her descendants, after her death, until their right was barred by the expiration of 30 years. In regard to the inchoate right of dower of the wife of Francis Duffy, it may be said that it may never accrue, and, if it does, appellant can look for indemnity to appellee’s covenant of warranty. No claim of title to the land in ques — 437 — tion has ever, been asserted by Wiley Taylor, the grandson of the original purchaser from Dr. T. L. Winston. On the contrary, he has disclaimed all right or title to it, and executed and tendered a quit claim deed to the appellant. As the judgment rendered by the chancellor carries into practical effect the conclusions herein reached, the case is, affirmed. Petition for rehearing by appellant overruled.