O'Bryan v. Langley

• Decision Date: 06 December 1900
• Citation: 59 S.W. 523
• Parties: O'BRYAN et al. v. LANGLEY. [1]
• Court: Kentucky Court of Appeals

59 S.W. 523

O'BRYAN et al. v. LANGLEY. ^[1]

Court of Appeals of Kentucky.

December 6, 1900

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by George Langley against G. Thomas O'Bryan and others to enforce an execution lien. Judgment for plaintiff, and defendants appeal. Reversed.

R. G Hill, for appellants.

Weir &amp Weir, for appellee.

BURNAM J.

This suit was instituted by appellee to enforce an execution lien on the land of Thomas O'Bryan, certain mortgagees being made parties defendant. The wife of Thomas O'Bryan filed an action to the proceeding, in which she alleged that her first husband, Lancaster Hagan, died in 1866, "seised and possessed" of the land sought to be subjected to the payment of plaintiff's claim; that he left surviving him one child, the defendant Ora Berry, and herself, who was his wife; that after the death of her first husband she married her co-defendant G. T. O'Bryan; that no dower had ever been allotted her in the lands of her first husband, and that she was entitled to dower in the two tracts sought to be subjected by appellee; and she prayed for an allotment of dower as surviving widow of her first husband, Lancaster Hagan, in the land sought to be subjected to appellee's claim. The plaintiff, for reply to the answer of Mrs O'Bryan, states in the first paragraph of his reply that he has no knowledge or information sufficient to constitute a belief that defendant was the wife of Lancaster Hagan, or was entitled to dower in any of said land, or that Hagan died "seised and possessed" thereof, or that no dower had been allotted her. The second paragraph of the reply is in these words: "Plaintiff says that more than fifteen years have elapsed, and thirty-two years have elapsed, since the alleged death of said Lancaster Hagan; and plaintiff pleads the statute of limitations in such case made and provided against any claim of defendant for dower in the land sought to be sold in the petition." Mrs. O'Bryan moved that the reply be stricken from file for lack of verification. This motion was overruled. Thereupon she demurred to the second paragraph of the reply of appellee, in which he attempted to plead the statute of limitations. Her demurrer was overruled, and, being carried back to her answer, it was held insufficient; and, Mrs. O'Bryan failing to plead further, judgment was entered subjecting the lands in controversy to plaintiff's claim. To reverse this judgment this appeal is prosecuted.

A good many alleged errors are relied on for reversal, but it is only necessary that we consider on this appeal the two...