Johnson v. Sweat

81 Ky. 392, 1883 Ky. LEXIS 79

Opinions

JUDGE HIKES

delivered tiie opixiox of the court.

When we considered this case before, we were misled by ■counsel into saying that the thirty years’ statute applied, and that the judgment should be affirmed. Counsel insisted that the statute was not well pleaded, but made no question as to the sufficiency of the proof to support the plea; so that, when we had decided that it was well pleaded, we applied it without a careful examination of the evidence. After carefully reading all the evidence, we must conclude that the thirty years’ statute does not apply. R. M. Johnson, appellees’ vendor, testifies that he purchased the land in 1848, and as this action was instituted in September, 1877, the thirty years had not elapsed. There is nothing else in the record upon which an affirmance can be based, notwithstanding the manifest justness of appellees’ ■claim. There is evidence strongly tending to show that estoppel might have been applied to appellant, but by some oversight the record does not show whether the representations of Mrs. Johnson that she had sold the land to R. M. Johnson and made him a good title were made to Sweat before or after his purchase from R. M. Johnson. As the record shows that Mrs. Mary Johnson never divested herself of title, and that she has been under the disability of coverture since R. M. Johnson began to claim the land, the judgment must be reversed, and cause remanded, with, directions for further proceedings consistent with this opin-ion.