Thweatt, &C., v. Bank of Hopkinsville

• Citation: 81 Ky. 1
• Parties: Thweatt, &c., v. Bank of Hopkinsville.
• Decision Date: 16 January 1883
• Court: Court of Appeals of Kentucky

Page 1

81 Ky. 1

Thweatt, &c., v. Bank of Hopkinsville.

Court of Appeals of Kentucky.

January 16, 1883.

APPEAL FROM TODD CIRCUIT COURT.

JAMES H. BOWDEN FOR APPELLANT.

H. G. PETREE FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Thomas Thweatt, having died in 1839, a tract of 398 acres of land, on which he resided, in Todd county, descended to his widow, Mary A. Thweatt, and heirs-at-law; and though no proceedings were had for the allotment of dower, the widow retained possession of her land until her death in January, 1872.

In 1863 a judgment was rendered in the Todd circuit court in favor of Lotspech & Co. for a debt due by appellants, W. N. Thweatt and P. F. Thweatt, two of the heirs, and for a sale of their undivided interest in the land to satisfy it; and at the sale, made in pursuance of the judgment, the Bank of Kentucky became the purchaser of their interest, and received a deed therefor, duly executed by the commissioner of court.

In 1869 the Bank of Kentucky conveyed the interest so purchased by it to appellee, the Bank of Hopkinsville, and in 1872, after the death of the widow, appellee and some of the heirs filed their joint petition in the Todd county court, seeking a division of the land, and in pursuance of a judgment of that court a division was made, three of the lots, aggregating 103½ acres, being allotted to appellee, and a deed of partition made therefor.

This action was brought February 11th, 1879, by appellee to quiet its title to and enjoin appellant from interfering with its possession and enjoyment of the three lots so conveyed to it. And on the 22d of April, 1880, the court below rendered judgment that appellee is the owner, and entitled to the quiet possession and enjoyment of the land, and perpetually enjoining appellant from taking possession of or interfering therewith. A certain amount of money, being rents from the land, attempted to be appropriated by appellant, was likewise adjudged to appellee.

A reversal of that judgment is asked upon three grounds:

1. Because appellee, being a banking corporation, has no power to hold the title to the land.

2. That the conveyance by the Bank of Kentucky in 1869 was champertous and void.

3. That appellee's right of recovery is barred by limitation.

The last two grounds will be considered first, and together.

In July, 1844, Mary A. Thweatt, the widow, by deed, released and relinquished unto the heirs of her husband, being her own children, including appellant, all her right, title, and interest in certain lands in the State of Virginia, of which he died seized, containing upwards of seventeen hundred acres, the consideration therefor, as expressed in the deed, being her natural love and affection, and their relinquishment to her of all their right, title, and interest in the tract of 398 acres in Todd county.

Though that deed appears to have been duly recorded in the county in Virginia where the lands conveyed are situated, the heirs never conveyed to their mother the land in Todd county that constituted part of the consideration of her conveyance to them, nor is there direct evidence that they accepted the latter deed; though it is in evidence that she held possession of the 398 acres, claiming the land as her own from the date of that deed, and her claim was known to and recognized by them.

But to the actions brought by Lotspech & Co. in 1863 she was made a party defendant, and being summoned, appeared and filed her answer to the petition of the plaintiffs.

The object of that action was to subject to the satisfaction of the plaintiff's debt the interests of appellee and P. F. Thweatt in the 398 acres of land alleged in the petition to be an undivided two ninths, subject to the widow's dower right. In her answer the widow, as is now admitted, expressly denied that appellee or P. F. Thweatt had any interest in the land, and alleged and claimed that she was the owner, by purchase, of the entire tract, including the two ninths.

It thus appears that an issue was made and tried between her and the plaintiffs in that action, and upon the trial decided adversely to her claim of ownership of the fee in the land, and, as before stated, the two undivided ninths were sold subject to her dower right, which only was recognized in that judgment to belong to her.

The undivided two ninths of the land subject to her dower right having thus, in an action to which she was a party and in which her claim was litigated, been sold under a judgment of court and purchased by the Bank of Kentucky, she was bound by that judgment, and the issue then made must be now considered as adjudicated and determined against her and those claiming under her.

Another effect of that judgment was to stop the running of the statute of limitation as respects her claim to the fee in the land, and to convert her alleged adversary holding into a tenancy for life, at least as against the Bank of Kentucky. For while she was not entitled to dower in the whole tract of land, she was entitled to have one third thereof allotted to her, and to the possession until the assignment of dower; so that she cannot be regarded as having, subsequent to that judgment, an adverse possession of the two ninths sold under the judgment capable of ripening into a complete title, or of rendering the sale by the Bank of Kentucky to the Bank of Hopkinsville in 1869 champertous.

Independent of, and previous to the proceeding in the county court in 1872 for the division of the land, to which appellant was made a party and summoned to answer, he was, by the sale under the judgment of 1863, divested of whatever right or title he may have had as heir-at-law of his father; and as his mother was at the same time adjudged to hold only a dower right in the land, he took nothing at her death or as her heir-at-law.

It follows, therefore, that whatever right appellant may now have in the land is merely possessory, and as his possession has been acquired since the death of his mother in 1872, even if he has held continuously and adversely ever since, the statutes of limitation have not run long enough in his favor to avail him in this action.

But as to the third ground relied on, there is more difficulty.

It being conceded that the purchase by the Bank of Kentucky was valid, the inquiry will be confined to the power of appellee to acquire and hold the land in contest.

"A corporation being the mere...