Collier v. Davis

12 Ky. Op. 100, 4 Ky. L. Rptr. 981, 1883 Ky. LEXIS 152

• Court: Court of Appeals of Kentucky
• Decided: May 1, 1883
• Status: Published

Opinion

Opinion by

Judge Lewis :

The land in controversy in this case was purchased by Jacob Dayis, under a decree rendered in an action by Hardin v. Morris’ Heirs about the year 1840, but though he held possession until his death in 1851 no deed was ever made to him for the land. After his death an action was brought by Berry, administrator of his estate, against his widow, heirs and creditors, to settle his estate, and in 1855 and 1856 the land was sold under a judgment rendered in that action and purchased by Rankin, the vendor of the appellants.

Rankin took possession of the land soon after his purchase but no deed was made to him until November 8, 1859, when in pursuance of an order of court rendered in the action of Hardin v. Morris’ Heirs a deed was made to him by a commissioner in behalf of Morris’ heirs in whom the title was up to that time. It does not appear from the record upon what ground the court made the order, in the action just referred to, for a deed to be made to the purchaser of the land under a judgment rendered in the different action of Davis’ administrator against his heirs, nor is it material to inquire. As James J. Davis and appellee, Lavinia Mountz, the only children and heirs at law of Jacob Davis, deceased, were not before the court when the judgment for the sale was rendered in the latter action, they were not affected thereby or by the sale made to Rankin in pursuance of it.

But from the date of the deed to him on November 8, 1859, until this action was commenced, January 5, 1875, a period of more than fifteen years, Rankins and the appellants who purchased different parcels of the land from him have had the actual and continuous possession of the land, claiming under and to the boundary of that deed, and that their possession has been adverse there can be no question.

It appears that at the date of the death of Jacob Davis in 1851, James J. Davis, one of the plaintiffs below, was thirty-seven and appellee, Lavinia Mountz, was thirty-five years of age, but the latter was then and has ever since been a married woman. As it was properly held by the chancellor that James J. Davis, being under no disability when his cause of action accrued in 1859, is barred of recovery by lapse of time, Lavinia Mountz is alone before this court as appellee. The only material question is whether she, being under the disability of coverture, though of full age in 1859, is likewise barred.

The rule settled by repeated adjudications of this court is that if at the death of the ancestor all his heirs were under disabilities they would have the time allowed after the removal of such disabilities from all to make their entry or bring their action. But if one of the heirs labored under no disability at the death of the ancestor, when the right of action accrued the disabilities of the other heirs do not prevent the statute from running, nor bring any of them within its saving. Moore v. Calvert, 6 Bush (Ky.) 356, and authorities there cited. As James J. Davis labored under no disability at either the date of his ancestor’s death or when his cause of action accrued, according to that rule appellee, Lavinia Davis (now Mountz), his co-heir, is not within the saving of the statute but also barred of recovery.

T. P. Forman, for appellants.

Wherefore the judgment and orders of the court below must be reversed and cause remanded with directions to dismiss appellees’ petition.