Beal v. Brooks' Ex'rs

• Decision Date: 18 April 1832
• Citation: 30 Ky. 232
• Parties: Beal v. Brooks' Executors and Heirs, Reed v. Brooks' Executors and Heirs,
• Court: Kentucky Court of Appeals

30 Ky. 232

Beal v. Brooks' Executors and Heirs, Reed v. Brooks' Executors and Heirs,

Court of Appeals of Kentucky.

April 18, 1832

Limitation. Possession. Vendee. Elder Patentee. Elder Entry.

ERROR TO THE BULLITT CIRCUIT; BOOKER, JUDGE.

Triplett and Chapeze for plaintiffs.

Crittenden and Richardson for defendants.

OPINION

UNDERWOOD JUDGE:

In deciding these controversies, we have deemed it only necessary to enquire into the protection which the plaintiff's in error derive from the lapse of time and their possession of the land, Lames entry of 21,000 acres has heretofore been adjudged valid by this court and the evidence in this record fully sustains it. The claim of the defendants in error derived from this entry, without regard to their other claims, must therefore prevail, unless the plaintiffs are protected by the statute of limitations.

If A who, as a vendee under an executory contract, has been in posses sion of land for seventeen years, enter into an agreement with B, (an adversary claimant), by which he surrenders to B the possession, and then B after he has held possession three years brings his suit in chancery against A's vendor relying on his elder entry, prays for a relinquishment by A's vendor of his elder legal title the chancellor will consider B's three years' possession as the possession of A's vendor, and by connecting the seventeen years' possession of A with the three years' possession of B, make out twenty years possession in A's vendor, and therefore refuse to give relief to B.

First in regard to the defence set up by Beal. It seems that his ancestor, in 1787, sold the 200 acres of land (the title to which the defendants require him to release) to James Robertson; that he entered and took possession thereof under Beal's title in 1787, left it for some months on account of the danger apprehended from Indians, returned to it in 1788, and continued to reside thereon until 1805, when he yielded the possession to Joseph Brooks, the ancestor of the defendants, who engaged to pay him for his improvements and to pay to Beal the purchase money in case he succeeded in recovering it by law from Robertson. This suit was commenced on the 10th of March, 1810.

Robertson settled within the interference between the claims of Beal and Holder, both of which are covered by Lames' entry. Holder's patent is older than Beal's. Joseph Brooks continued in possession after he received it from Robertson, until he instituted his suit; and if the time running between the date of the institution of the suit, and the delivery of the possession by Robertson to Brooks, should be added to the seventeen years during which Robertson lived upon the land; and the possession of Brooks, after he entered with the consent of Robertson can be regarded as the possession of Beal; then there has been an adverse possession of more than 20 years, and the complainants ought not to have succeeded against Beal in the circuit court. We are of opinion that the possession of Brooks, under the circumstances of this case, should be regarded as the possession of Beal. Robertson as vendee entering under an executory contract was the quasi tenant of Beal. Brooks was well apprised of the relation subsisting between him and Beal. With this knowledge, he attempted to seduce Robertson into a surrender and disclaimer of the title, under which he had entered and which he was estopped to deny, by agreeing to pay him for his improvements and to pay the purchase money to Beal in case he recovered by law. We look upon this conduct as fraudulent in respect to Beal. No man should be permitted to buy up the claim of the vendee of land holding under an executory contract, and by so doing convert the friendly possession subsisting between the vendor and vendee into a possession adverse to the vendor's right. For if such a doctrine were tolerated it would tempt adverse claimants to offer rewards to faithless vendees in order to gain the possession, and then such claimants would reap advantages from the strife and contention resulting from the violations of contracts on the part of vendees, who but for the interference might have punctually...