Oldhams v. Jones, &C.
| Decision Date | 07 June 1845 |
| Citation | 44 Ky. 458 |
| Parties | Oldhams <I>vs</I> Jones, Mosely, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE MADISON CIRCUIT.
DAVID JONES and Elizabeth his wife, the said Elizabeth being a daughter and one of the heirs of Robert Mosely, deceased, with the heirs of Esther Davis, who was also a daughter and heir of said Robert, exhibited their bill in chancery against all the other heirs of said Robert, and also against the appellants, Abner and Hezekiah Oldham, claiming a moiety of five hundred acres of land, alledged to be in possession of said Oldhams, and praying for a partition thereof, and an account of rents and profits.
The leading facts in the case are the following:
In 1785, a grant issued to Robert Mosely for the 500 acres of land in controversy, also one at same time for 750 acres; both tracts lying in the present county of Madison, with the exception of a fraction of the former, which lies in the county of Estill.
The lands were located and carried into grant by Green Clay, under a contract with Thomas Mosely, the son and agent of the patentee, by which Clay was to have a moiety of each tract for his services as locator. As early as 1796, Clay settled tenants on both tracts, and sold a portion of the tract of 750 acres. In 1803 or 1804, Robert Mosely died, intestate, leaving eleven children, his heirs.
In 1804, the heirs and the widow entered into a written agreement for the division of the estate, by which these two tracts of land, or whatever interest the heirs had in them, were allotted to the four daughters.
In 1811 the lands were sold for the taxes of 1810, and deeds by the Register, made to Thomas Mosely in 1814. In 1815, Thomas Mosely instituted actions of ejectment against Clay, and recovered judgments for eight elevenths of both said tracts. Clay, thereupon, exhibited his bill against Thomas Mosely and the other heirs of said Robert, setting up his claim as locator, and an obligation upon Thomas Mosely to convey him the title to a moiety of both the tracts, and obtained an injunction against the judgments in ejectment. He alleged that there were conflicting adverse claims covering the greater portion of the 750 acre tract, which he had purchased or quieted. He further charged that the lands had been suffered to be sold for the taxes, at the instance of Thomas Mosely, with a view to enable him to comply with his obligation for the conveyance of the title to Clay, of a moiety of the two tracts.
Thomas Mosely alone, of the heirs of Robert, answered Clay's bill, nor does it appear that there was any service of process, either actual or constructive, upon the residue.
The controversy between Clay and Thomas Mosely, which, to use the mildest terms in regard to it, was a very angry one, continued till 1825, when they came to a compromise, by which Clay conveyed to Mosely all his title and interest to the 500 acres, and Mosely conveyed to Clay his title and interest to the 750 acres. The suit of Clay against Mosely's heirs, and the cross suit of Thomas Mosely against Clay, were dismissed agreed.
On the same day that these conveyances passed between Clay and Mosely, the latter sold and conveyed the 500 acre tract to the appellant, Abner Oldham, who in 1836, sold and conveyed it to the appellant, H. Oldham.
It appears that the complainants, Elizabeth Jones, and Esther Davis, the ancestor of the other complainants, and also one of the other daughters, were femes covert at the death of their father, and so continued till after the Register's deed was made to Thomas Mosely.
The complainants moreover alledge, that Thomas Mosely, who resided in Kentucky, and who had acted as the agent of the heirs in reference to said lands, fraudulently suffered them to be sold for the taxes, and that whatever title he thus acquired, was held by him in trust, or a moiety thereof, for their use and benefit. They charge that the Oldhams purchased with notice of their claim to a moiety of the land, and that they, in like manner hold it in trust for them. The Oldhams, in their answers, deny all the material allegations in the complainants' bill, and rely that they were purchasers for a valuable consideration, without notice of the equity asserted by them, and also upon lapse of time.
The Court decreed the complainants two elevenths of the 500 acre tract, and also rents, and the Oldhams have appealed to this Court. The complainants also, object to the decree, and have assigned cross errors.
In the revision of the case, the exception taken by the appellant in the Court below, to the testimony of John Mosely, will be first noticed.
It appears that John Mosely was a defendant, was one of the heirs of Robert Mosely, and as such, a party to the agreement of division in 1804, under which the complainants claim a moiety of the land in controversy. That agreement does not, in terms, allot this tract of land to the daughters, but after providing for various specific allotments to the widow and heirs, it then gives to the daughters all the residue of the estate, to be equally divided among them. Whatever interest, therefore, the widow and heirs had in this tract of land, the daughters became thereby equitably entitled to. It does not appear that any estimate was put upon the residuary portion of the estate, nor any assurance given or representation made as to the extent of the interest of the heirs in these lands, or as to the validity of their title. The locator's claim is in effect admitted by the complainants. To the extent that they may be affected by that claim, therefore, John Mosely as a co-heir, would not be liable to contribution. The tax claim relied upon by the defendants, did not exist at the time of the division. John Mosely had no agency in obtaining it, and has no connection with it whatever, and if the land has been or shall be lost on account of that claim, the loss will impose upon him no liability to contribution to the complainants. It does not, therefore, appear that he has any interest in the result of this suit, and the exception being to his competency alone, was properly overruled.
2ndly. It is contended that the complainants were barred by an adverse possession of more than twenty years. It is true Clay took possession of a portion of the tract more than forty years before the exhibition of complainants' bill, but it is very clear that he took and held possession under Mosely's title, claiming only a moiety thereof of as locator. He claimed to hold in no other way, and set up no other title or claim in the suit with Thomas Mosely and Mosely's heirs. It seems from the record in the ejectment of Mosely against Clay, that Clay attempted to rely upon a deed from Commissioners appointed by the County Court to divide the tract between him and Robert Mosely, or his heirs, but the deed was held to be void and the opinion of the Circuit Court affirmed by this Court. But that deed is not in the record nor is it shown when or how the attempted division was made. Regarding Clay's possession, therefore, as amicable, being taken and held under the title of Mosely and his heirs, the Oldhams cannot connect it with their possession acquired by A. Oldham, under his purchase from Thomas Mosely, and without the possession of Clay, the complainants would not be affected, certainly not barred by the possession of the Oldhams, which commenced in 1825.
3dly. It is insisted that the Complainants were only entitled to recover, if at all, two-elevenths of a moiety of the tract.
In the consideration of this proposition, it will be necessary first to enquire to what extent A. Oldham acquired the legal title, by his purchase from Mosely.
It appears that three of the heirs of Robert Mosely, were at his death, and at the time of the Register's sale and conveyance, married women. Their rights, in virtue of the act of 1799, entitled, "an act to amend and reduce into one the several acts establishing a permanent revenue," were not affected by the sale, (Stat. Laws, 1088,) also Harris vs Smith, (2 Dana, 12.)
The Register's deed, therefore, could in no view of the case, pass the title to more than eight-elevenths of the land, there being eleven heirs. Thomas Mosely subsequently acquired the title of one of the three married sisters, and thus upon the supposition that the Register's deed was valid as to eight-elevenths possessed and conveyed to Oldham the title to nine-elevenths of the whole tract.
In an amended bill, filed by the complainants, they take this view of the case, and alledge that A. Oldham in this way obtained the legal title to the nine-elevenths. This admission, if the complainants are held to it, renders unnecessary any further inquiry in regard to the legal title.
But it is now contended that that allegation was made through mistake, and being a mere deduction of law from the facts alledged and proved, that they ought not to be concluded by it, and in support of this position, the case of Trimble vs Harrison, (1 B. Monroe, 142,) is relied upon. In that case, each party, in the opinion of the Court, assumed a position, in reference to the citizenship, or alienage of an individual, directly hostile to his own interest, and the Court decided that neither should be prejudiced by the mutual mistake, as alienage or citizenship was not a simple fact, but in that case a deduction of law, from various facts. The complainants in this case, alledge and prove that Robert Mosely died in 1804 — that the land was sold for the taxes of 1810 — and that the Register's deed passed the title to eight-elevenths thereof. The Oldhams contended that the title of all the heirs passed. To what extent, if any, the deed conveyed the title, is certainly a question of law, deducible from the facts, and we are of opinion, upon the authority referred to, as well as the general principles of equity, that the complainants ought not to be concluded or prejudiced by their admission, as...
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