Hargis v. Flesher Petroleum Co.

• Decision Date: 21 June 1929
• Citation: Hargis v. Flesher Petroleum Co., 231 Ky. 442, 21 S.W.2d 818 (Ky. Ct. App. 1929)
• Parties: HARGIS et al. v. FLESHER PETROLEUM CO. et al.
• Court: Kentucky Court of Appeals

21 S.W.2d 818

231 Ky. 442

HARGIS et al. v. FLESHER PETROLEUM CO. et al.

Court of Appeals of Kentucky

June 21, 1929

Rehearing Denied Dec. 17, 1929.

Appeal from Circuit Court, Lee County.

Action by Grace Hargis and others against the Flesher Petroleum Company and others.Judgment for defendants, and plaintiffs appeal.Affirmed.

McCandless C.J., and Dietzman, J., dissenting in part.

Talbott & Whitley, of Paris, and H. T. Beatty, of Beattyville, for appellants.

Sam Hurst, of Beattyville, for appellees.

WILLIS J.

This action was instituted by Grace Hargis, a granddaughter, and some of the other heirs, of Amanda Helen Hargis, to recover a tract of land located in Lee county and mesne profits accrued thereon.The heirs that did not join as plaintiffs were made defendants.The plaintiffs alleged in the petition that on March 22, 1869, the land in question was conveyed to Amanda Helen Hargis by a fee-simple deed with covenant of general warranty; that she was in possession thereof at the date of her death and had held it as general estate.It further alleged that Amanda Helen Hargis was the wife of James Henderson Hargis, and had not been authorized to act as a feme sole or empowered to dispose of land by will.Amanda Helen Hargis died in 1873, and at the March, 1874, term of the Lee countycourt a paper purporting to be her will was probated.The will provided:

"First I do hereby make and appoint James H. Hargis, my husband, my executor and that he shall not be required to give any bond.

Second: I hereby authorize and direct him at his own will and pleasure to sell any lands or other property that I now own and apply the proceeds in any way or manner he may seem fit after paying any just debts that I owe-and leave all the lands and property that I now own at his disposal and give all right and title to the same and full and complete power to make title to the same which shall have full force and effect and be binding as though I had done the same myself.I make this my last will and testament and trust that he will maintain and educate my dear children and he believing it to their interest."

The petition charged that the will was void under the statute then in effect, which permitted a married woman to make a will of any estate secured to her separate use by deed or devise, or in the exercise of a written power, but not otherwise.General Statutes 1888, p. 1280, c. 113, § 4;Payne v. Pollard, 3 Bush, 127;Mitchell v. Holder, 8 Bush, 362;Craine v. Edwards,92 Ky. 114, 17 S.W. 212, 13 Ky. Law Rep. 499.The plaintiffs averred that, notwithstanding the fact that the will was void, the devisee, James Henderson Hargis, in his lifetime and "as though he were the owner of said tract of land under the will of his wife," undertook to convey the land to the St. Helens Land, Coal & Iron Company.The deed exhibited was dated May 17, 1887, and purported to convey the fee, giving the grantor's source of title as follows: "And being the same tract of land conveyed by K. F. Hargis and wife to Amanda Hargis by deed dated March 22, 1869, and by her devised to said James H. Hargis, party of the first part herein, by her last will and testament, and the same land lying within the tract known as the McGuire tract and originally a part thereof, lying near to and adjoining the land of John S. Powell."That deed contained a covenant of general warranty, and was, on July 2, 1887, lodged for record and recorded.By a series of conveyances of similar purport the land came to the defendants now in possession thereof.The various vendees have been in the exclusive and entire possession of the land, exercising all the rights of ownership, from the date of the deed to the present time.The grantor, James Henderson Hargis, was in like possession and control from the time the will was probated until he conveyed the land.The timber was taken off, portions of the surface were sold to various vendees, clearings were made, homes were built on the land, and minerals were extracted from it.The children were all of age when the deed was made, and some, if not all, of them knew the facts from the beginning.Some of the children, perhaps all but one, were of age when the will was admitted to probate.There was testimony that the father had advised some of the children of his intention to sell the land, and of the fact that it had been sold.James Henderson Hargis died in 1912, and on January 31, 1920, this action was commenced.The answer consisted of a traverse of the allegations of the petition and a plea of the statute of limitations.The circuit court gave a peremptory instruction to find for the defendants, and the plaintiffs have prosecuted this appeal.

The position of the plaintiffs is that the will of the married woman was void and vested no rights in the devisee; but as the devisee was the surviving husband, and entitled to a life estate as a tenant by curtesy (Rose v. Rose,104 Ky. 48, 46 S.W. 524, 20 Ky. Law Rep. 417, 41 L. R. A. 353, 84 Am. St. Rep. 430), he and his vendees, immediate and remote, were entitled to possession of the land during his life.It is claimed that the heirs of Mrs. Hargis took a remainder interest, subject to the life estate of the surviving husband, and that no limitation started against them until the death of the life tenant in 1912.The position of the defendants is that, even though the will was void, the devisee named therein asserted its validity, caused it to be probated, did not renounce its provisions or claim any estate by curtesy, but specifically and publicly claimed the whole title under and by virtue of the will.They insist that such holding was adverse, and started the statute of limitations against the heirs, and barred their remedy long before this action was begun.

There is an established rule that a life tenant holds amicably with the remainderman, and indeed for him, and no limitation runs against the remainderman until the death of the life tenant.Jeffries v. Butler,108 Ky. 531, 56 S.W. 979, 22 Ky. Law Rep. 226;May v. Chesapeake & O. R. Co.,184 Ky. 504, 212 S.W. 131;Phillips v. Williamson,184 Ky. 396, 212 S.W. 121.We have another series of cases holding that when a life tenant, who has no other interest or claim to the property except his life estate, attempts to convey the fee, only his life estate passes by the attempted conveyance, and the statute of limitation does not start against the remainderman so long as the life tenant survives.McIlvain v. Porter, 7 S. W. 309, 8 S.W. 705, 9 Ky. Law Rep. 899;Jeffries v. Butler,108 Ky. 535, 56 S.W. 979, 22 Ky. Law Rep. 226;Webber v. Gibson, 8 Ky. Law Rep. 125;Id., 13 Ky. Op. 603;Bransom v. Thompson,81 Ky. 387;May v. Chesapeake & O. R. Co.,184 Ky. 493, 212 S.W. 131.

The opinion in Rose v. Ware,115 Ky. 420, 74 S.W. 18824 Ky. Law Rep. 2321, is apparently to the contrary, where, on rehearing, the case of Bransom v. Thompson,81 Ky. 387, 76 S.W. 506, 25 Ky. Law Rep. 947, is expressly overruled.Yet the overruled case was cited again in Dukes v. Davis,125 Ky. 313, 101 S.W. 390, 30 Ky. Law Rep. 1348.The exigencies of the present case do not require us to consider or determine the true application or operation of the principle involved in that line of cases.There is another principle applied in a long and unbroken line of well-considered cases that is fatal to the claim of plaintiffs in this action.That principle applies when the life estate and the remainder interest are both acquired, and the whole title is adversely claimed; for then the statute starts against the owner of the remainder interest, even though the act or instrument under which the remainder estate was acquired may have been ineffectual or void.An heir is concluded by the conveyance or conduct of the ancestor under whom he claims.The heir must stand in the shoes of the ancestor, and any act of the ancestor affecting the rights of others must be treated and given effect as if it was the act of the heir.Foust v. Hill,215 Ky. 366, 285 S.W. 235, Wooton v. Murrell,134 Ky. 40, 119 S.W. 191.When a remainderman, or his ancestor, under whom he asserts a derivative right, and with whom he is in privity by blood, undertakes to transfer title to real estate, whether by will, contract, or otherwise, but fails for any reason to make a valid or effectual conveyance, and possession is held thereunder for the statutory period, the remainderman's right to recover the land is barred.The statute starts when the possession begins under the void or ineffectual will, deed, contract, or other instrument, or act, which affords the basis of the claim and the predicate for the possession, and the bar is complete when the fixed time expires.The reason for the rule is that when the possession, which is open, notorious, and adverse, is referable to an act of, or predicable upon an attempted transfer by, the ancestor, or the owner of the remainder interest itself, it may not be reconciled with the holding of a life estate alone, but constitutes notice of an adverse claim to the title.The same reasoning underlies the rule that notice, actual or constructive, to a joint tenant or remainderman that a cotenant or life tenant is holding adversely, starts the statute of limitation against him.Com. v. Gibson,85 Ky. 666, 4 S.W. 453, 9 Ky. Law Rep. 205;May v. Chesapeake & O. R. Co.,184 Ky. 493, 212 S.W. 131;Gilbert v. Kelly,57 S.W. 228, 22 Ky. Law Rep. 353;Greenhill v. Biggs,85 Ky. 156, 2 S.W. 774, 8 Ky. Law Rep. 825, 7 Am. St. Rep. 579;Godsey v. Standifer,101 S.W. 921, 31 Ky. Law Rep. 47;Bloom v. Sawyer,121 Ky. 308, 89 S.W. 204, 28 Ky. Law Rep. 349;Holmes v. Lane,136 Ky. 21, 123 S.W. 318;Padgett v. Decker,145 Ky. 227, 140 S.W. 152;Mounts v. Mounts,155 Ky. 370, 159 S.W. 818;...