Petty v. Malier, &C.

• Decision Date: 19 June 1855
• Citation: 54 Ky. 591
• Parties: Petty <I>vs.</I> Malier, &c.
• Court: Kentucky Court of Appeals

54 Ky. 591

Pettyvs.Malier, &c.

Court of Appeals of Kentucky.

June 19, 1855.

APPEAL FROM ANDERSON CIRCUIT.

This suit was brought originally in the name of Polly Malier, to recover a tract of 130 or 140 acres of land lying in Anderson county, in the possession of Samuel B. and William B. Petty.The plaintiff recovered a judgment, which was reversed by this court, upon the ground mainly that the husband of the plaintiff had not united in the suit.On the return of the case to the Circuit Court, the petition was amended and Wesley Malier, the husband, made a plaintiff.Subsequently Mrs. Malier died, and the suit was revived in the name of her children, and a trial being had, a verdict and judgment was recovered by the plaintiff, and the defendants have appealed.

The evidence in the case conduced to prove that Eleanor Petty intermarried with Frederick Cogswell in December, 1809.That in 1810he purchased the land in contest from one Gist, and commenced forthwith to improve it, and moved upon it in 1811.He was in the army during the years 1812 and 1813, and returned and died in 1814.Samuel B. Petty, the brother of Mrs. Cogswell, took possession of the greater part of the personal estate of Cogswell, amounting to two hundred and seventy or eighty dollars, and in 1816 had it appraised.Cogswell left two children only, Diana and Polly.The former arrived at the age of twenty-one, and died without ever having been married, leaving her mother and sister still living.Polly married Wesley Malier, and died leaving six children.Mrs. Malier was under twenty-one years of age when she married, and all her children were infants at her death.

Mrs. Cogswell, about the year 1817, married Oliver Cromwell, and they continued to occupy the land which had been improved by Cogswell during his life-time, Cromwell and wife removed to Indiana but at what time does not certainly appear.Before their removal Cromwell leased the land to one Sherwood for a term of years.After remaining in Indiana a short time, Cromwell and wife separated, and she returned to Anderson county before the expiration of the lease to Sherwood.After Sherwood's lease expired, old Mrs. Petty took possession of the land as the tenant of Mrs. Cromwell.About 1832Samuel B. Petty, the brother of Mrs. Cromwell, set up some claim to the land and forcibly took possession of one of the fields.Before this possession taken by Samuel B. Petty there does not appear to have been any interruption to the possession taken by Cogswell in the year 1811.

The appellant, Samuel B. Petty, claims right to the land by purchase under a sheriff's sale made in 1827, in virtue of a judgment and execution in favor of Petty, against Oliver Cromwell, rendered by the Woodford Circuit Court in an action of slander, and claims that Cromwell had title to the land in consequence of a judgment of the Federal Court for Kentucky in an action of ejectment in the name of Story against sundry persons, of whom Cromwell was one, and that Cromwell made a compromise, and purchased from one Phillips, who professed to be the agent of the plaintiff in that suit.The jury rendered a verdict for two-thirds of three-fourths of the land, &c.A motion in arrest of judgment was made by appellant and overruled, and defendants have appealed.

G. W. Kavanaugh, for appellants —

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Thos. N. Lindsey, on the same side —

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J. Harlan, for appellees —

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Judge SIMPSONdelivered the opinion of the Court —

Numerous questions are presented in this case, none of which are of difficult solution.

The possession of the land in controversy, which was commenced by Cogswell in 1810, was continued uninterruptedly during his life, and by his widow and children after his death, until S. B. Petty, in the year 1832 or 1833, set up claim to the land, and took possession of it, under the purchase he had made at sheriff's sale.This possession, under Cogswell's claim, was not disturbed by the judgment in ejectment in the Federal Court against Cromwell, the husband of the widow.This judgment was never executed, no actual eviction took place under it, and no change of possession was effected by it.(Smith vs. Hornback,4 Litt. 232.)The purchase made by Cromwell was for the benefit of the widow and heirs of Cogswell, and was not intended to change the character of the possession held by them.And even if Cromwell had intended to purchase and hold under the title of the lessor of the plaintiff in that action, although the judgment of eviction might have authorized him to do it, still he could only have held the land against Cogswell's heirs, who were not parties to the judgment, by showing that he had acquired the paramount title by his purchase, whereas he does not appear to have obtained any title whatever.

Cromwell did not have any title to the land, subject to execution.He did not...