Elkhorn Coal Corporation v. Tackett

• Decision Date: 20 December 1935
• Citation: 261 Ky. 795
• Parties: Elkhorn Coal Corporation v. Tackett et al.
• Court: United States State Supreme Court — District of Kentucky

261 Ky. 795

Elkhorn Coal Corporation v. Tackett et al.

Court of Appeals of Kentucky.

Decided December 20, 1935.

1. Partition. — Land division which was not reduced to writing or signed by any one was a nullity.

2. Infants. — Ownership by adverse possession could not be acquired by possession of particular tract under void division of land during minority of heirs among whom land was divided.

3. Infants. — Only express or implied ratification by former minor after attaining majority affords protection to grantee who is holding under deed made by minor during minority.

4. Infants. — Deed voidable for infancy of grantor when made is not ratified by execution of another deed voidable for same reason.

5. Infants. — Plaintiff held not estopped to claim interest in property sought to be partitioned because defendant notified plaintiff when she was seventeen years old that defendant would buy property from plaintiff's alleged grantee, and took no steps to prevent transaction.

6. Estoppel. — Grantors' alleged ratification of deed executed during grantors' minority would inure to benefit of grantee's transferee.

7. Infants. — Plaintiff held entitled to partition of land notwithstanding plaintiff had executed deed conveying land, where at time of execution of deed plaintiff was minor and defendant failed to establish execution of alleged ratification of deed on plaintiff's reaching majority.

8. Infants. — Title bond given by fifteen year old minor held not

ratified because minor and her husband joined with grantee in a deed to another three years thereafter.

9. Infants. — Plaintiff seeking partition of land held not estopped to deny deed made to defendant's grantor during plaintiff's infancy on ground that when notified by defendant that defendant was purchasing land from plaintiff's grantee, plaintiff claimed that she was then twenty-one years of age, where defendant knew that plaintiff was an infant at time when she represented to be of age.

10. Infants. — Infant must disaffirm deed within reasonable time after attaining his majority.

11. Infants. — Institution of partition suit one year, eight months, and thirteen days after plaintiff became twenty-one, and three years, five months, and five days after making of deed which plaintiff sought to disaffirm held commenced in time (Ky. Stats., sec. 2622).

12. Infants. — Institution of partition suit eight years, eight months, and two days after plaintiff became twenty-one, and ten years, eight months, and twenty-four days after plaintiff had signed deed which she sought to disaffirm, and fourteen years, six months, and a day after plaintiff had executed her title bond pursuant to which plaintiff had joined with her husband in deed to defendant held commenced in time (Ky. Stats., sec. 2522).

Appeal from Knott Circuit Court.

J. WOODFORD HOWARD, W. PORTER MAYO and EDWARD C. O'REAR for appellant.

JOHN W. CAUDILL for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

This is a suit begun by Anna Tackett, and Rosa Tackett and their husbands for partition of a tract of land that formerly belonged to Mahala Caudill and the allotment to each of them of one-tenth thereof. From a judgment according to the plaintiffs the relief they sought, the Elkhorn Coal Corporation alone has appealed.

September 9, 1892, Mahala Caudill, then domiciled in Knott county, departed this life intestate survived by her husband, Wilson Caudill, and one son, Wilburn, Caudill and nine daughters, as her heirs at law. All of these girls later married. Rhoda married Maryland Tackett. Nancy married W.B. Mullins. Hannah married Andrew Johnson. Susan married Abel Tackett. Rebecca married William Tackett. Flora married Ben. Caudill. Anna married Enos Tackett. Minda married Dock Thornsberry. Rosa married Ellis Tackett.

Of these, Rebecca Tackett died intestate some years after Mrs. Caudill and was survived by her husband William Tackett, and by her only daughter, Mary Alice Tackett, born about 1896, as her heir at law. Wilson Caudill died while this suit was pending. About half of these children were infants when Mahala Caudill died, but the age of only two of them is of importance in this controversy. Anna Tackett was born January 16, 1895, and before she became of age she married her coplaintiff, Enos Tackett, and is still his wife. Rosa Tackett was born January 5, 1892, and during her minority married her coplaintiff, Ellis Tackett, and has since been his wife.

About the year 1900 and after the death of Mahala Caudill, three men (her surviving husband, Wilson Caudill, together with Maryland Tackett, the husband of Rhoda Tackett, and W.B. Mullins, the husband of Nancy Mullins) made a fireside division of this tract of land. Many of these children were then infants and Mr. Mullins was the guardian of some of them. He testifies the land was fairly and equally divided and that after the division, and as an additional precaution, they cast lots to determine which child should get each particular piece and it was so allotted, but we note the perversity of fate was such that the size of the lots seemingly varied inversely with the helplessness of the child and Nancy Mullins and Rhoda Tackett drew the lots with buildings on them. This division was not reduced to writing or signed by any one, hence it was a nullity. Woodbeck v. Wilders, 18 Cal. 131; Fox v. Succession of Broussard, 161 La. 949, 109 So. 773; White v. O'Bannon, 86 Ky. 93, 5 S.W. 346, 9 Ky. Law Rep. 334. And as against these who were then infants, an ownership by adverse possession cannot be acquired by possession of a particular tract under it during their minority.

At once they began to trade and traffic in this land, and despite the fact that she was a child and Mr. Mullins was her guardian, he traded with Rosa (Caudill then, but now the wife of Ellis Tackett) as though she were mature, an utter stranger, and stood at arm's length, and he testifies that in 1906 or 1907, she being then fourteen or fifteen, he bought her interest and she gave him a bond for a deed which he has lost, and that on April 13, 1911, she and her husband made him a deed. Rosa was then nineteen and her husband eighteen years of age.

Maryland Tackett was but little less active than his brother-in-law, Mullins, and March 10, 1900, he took from Anna Caudill (then fifteen years of age) and from Flora Caudill, also an infant, a title bond for their interests in this Mahala Caudill farm. On December 28, 1903, he and his wife, Rhoda Caudill Tackett, conveyed the surface of this land to Rosa Caudill Cook (a first cousin of these Caudill children).

Rosa Caudill Cook thereafter died intestate, survived by her husband, Jerry Cook, and her five children, Leland, Carlisle, John M., Frank, and Mary, as her only heirs at law, the last three were infants when this suit was filed.

On September 18, 1914, the whole of this Mahala Caudill tract was claimed by Nancy Mullins, W.B. Mullins, the infant Mary Alice Tackett, the Cook family, Wilburn Caudill, and Sarah Caudill, the last named was not one of the children of Mahala Caudill, but was a relative and claimed by purchase the interest of Flora Caudill, such a deed being filed in this record. Thus we have two claimants of Flora Caudill's interest, Sarah Caudill and the Cook family.

On September 18, 1914, Anna Tackett and Rosa Tackett with their husbands filed suit for partition, alleging the above claimants owned eight-tenths of this tract, made them defendants, and asked that one-tenth of this tract of land be allotted to Rosa Tackett and one-tenth to Anna Tackett.

A guardian ad litem was appointed for the infants on November 20, 1914.

Measured by section 499 of the Civil Code of Practice, this petition was quite defective, but the defendants and interveners cured many of these defects.

The original defendants answered and denied the ownership by either of the plaintiffs of any interest in this land, asserted ownership in W.B. Mullins and Nancy Mullins of all of it except one tract which they asserted belonged to the Cooks. They filed no title papers and made no other claim to title than to assert title in themselves by adverse possession, and this adverse possession was denied by reply. Four years later the guardian ad litem for the infants adopted this same defense. The Interveners.

On August 19, 1915, the Elkhorn Fuel Company filed petition to be made a party defendant and asserted title in itself and the Beaver Creek Consolidated Coal Company to appurtenant minerals and title in the defendants to the surface, and the last-named coal company did the same. Neither filed any title papers. Plaintiffs filed denials.

While this litigation was pending and after intervening as above, on December 1, 1915, a deed was made by what is described in the caption as the Elk Horn Coal Company to the Elkhorn Coal Corporation, but this paper is signed and acknowledged by the Elk Horn Fuel Company, so we assume the name as given in the caption is a clerical error. On April 26, 1920, the Beaver Creek Consolidated Coal Company executed a deed to the Elkhorn Coal Corporation, and on May 16, 1928, the latter company was allowed to intervene as a defendant and it asserted title to the minerals and divers rights appurtenant to this Mahala Caudill property, and adopted the pleadings as to the surface that had been filed by the original defendants. By agreement, all pleadings were controverted of record. On March 23, 1934, almost twenty years after they had begun their efforts for partition, the court directed that one-tenth of this Mahala Caudill tract be allotted to Anna Tackett and one-tenth to Rosa Tackett. Many things contributed to the slow progress of this case through the court, among which we may mention the coming of the World's War, the witnesses were widely scattered, the disqualification of the regular judge with the resulting necessity of having a special judge appointed, and the loss at one time of the...