May v. Chesapeake & O. Ry. Co.

• Citation: 184 Ky. 493,212 S.W. 131
• Parties: MAY ET AL. v. CHESAPEAKE & O. RY. CO. ET AL.
• Decision Date: 29 April 1919
• Court: Kentucky Court of Appeals

212 S.W. 131

184 Ky. 493

MAY ET AL. v. CHESAPEAKE & O. RY. CO. ET AL.

Court of Appeals of Kentucky.

April 29, 1919

Rehearing Denied June 17, 1919.

Appeal from Circuit Court, Pike County.

Action by D. A. May and others against the Chesapeake & Ohio Railway Company and others. From a judgment for defendants plaintiffs appeal. Affirmed.

Stratton & Stephenson, of Pikeville, and John W. Woods, of Ashland for appellants.

Childers & Childers, of Pikeville, for appellees Ratliff.

A. L Ratliff, of Pikeville, J. M. York, of Catlettsburg, J. J. Moore, of Pikeville, and Worthington, Cochran & Browning, of Maysville, for appellee Chesapeake & O. Ry. Co.

SAMPSON J.

This action in ejectment was instituted by D. A. May and several other persons, heirs of Ann Eliza May, in the Pike Circuit Court in August, 1913, to recover of the Chesapeake & Ohio Railway Company, Greenough Coal & Coke Company, Big Sandy Railway Company, Joel Ratliff, and Harriett Ratliff, eleven-twelfths of a tract of 50 acres of land, lying on Marrowbone creek, in Pike county. The Chesapeake & Ohio Railway Company built its track across the land for a distance of one-half mile or more, and the Greenough Coal & Coke Company had constructed its mining camp, consisting of a tipple, or tipples, trams, incline, switches, tracks, commissary, and many houses used for residences upon a part of the land, and Joel Ratliff and wife were in possession of the balance of the tract, holding and claiming it as their own at the time of the institution of the action. The lands in controversy were patented to David Branham June 21, 1827, and Branham took actual possession in the same year. On March 7, 1836, Branham sold and conveyed the land to Isaac Moore by deed of that date. Moore sold it to William Ratliff, Sr., and conveyed it by deed of date March 4, 1839. Ratliff on March 13, 1846, by deed conveyed a life estate in the lands to his daughter, Mrs. Ann Eliza May, with remainder to her children, and this is the beginning of the controversy. Ann Eliza was the wife of James May, and they immediately took actual possession of the land and lived on it until 1853. In the meantime Polly May, a daughter of Ann Eliza and James May, died intestate, and James and Ann Eliza May, as the heirs of their daughter, inherited her share of the land in fee. On February 1, 1853, James and Ann Eliza May undertook to convey the fee-simple title to the entire tract by deed to Reuben Rowe. In May, 1856, Rowe conveyed it by deed of special warranty to Silas Ratliff. Shortly thereafter Silas Ratliff died, leaving a will, which was probated in 1858, devising this tract of land to his daughter, Rebecca Ratliff, who afterwards married Lovett Childers, and Mrs. Childers and her husband on June 30, 1882, deeded the land to William Ratliff and appellee Joel Ratliff with covenants of general warranty. By deed of date April 16, 1887, William Ratliff and wife conveyed their one-half undivided interest to appellee Joel Ratliff by deed of general warranty, thus apparently investing him with title to the whole tract. Joel Ratliff took and held said land from 1887 until a short time before the institution of this action, when he sold and conveyed, by deed of date August 29, 1905, a part of it to his coappellee, Greenough Coal Company, and about the same time sold a right of way to the Chesapeake & Ohio Railway Company. The balance he holds and claims as his own.

This litigation, commenced by the children and heirs of Ann Eliza May, is based upon a claim of ownership of the tract of land to which reference is made under the deed above mentioned from William Ratliff, Sr., in 1846, to his daughter, Ann Eliza May, in which he attempted to convey to her a life estate with remainder to her children. Said deed is as follows:

"This indenture, made and entered into this 13th day of March, A. D. 1846, by and between Wm. Ratliff, Sr., of the one part, of the county of Pike and state of Kentucky, and Ann Eliza May, of the other part, of the same county and state. The said Wm. Ratliff, for and in consideration of natural affection for the said Ann Eliza (being his daughter), hath this day bargained and sold unto the said Ann Eliza a certain tract or parcel of land lying and being in the county of Pike and state of Kentucky, on the waters of the Long fork of Marrowbone creek, containing 50 acres by survey, bounded as followeth, to wit: Beginning on a beech on the south side of the creek, thence running up the creek S. 44~ E. 60 poles to a beech; S. 69~ E. 40 poles to a hickory; S. 74~ E. 40 poles to a beech; S. 20~ W. 12 poles to beech; N. 78~ W. 90 poles to lynn; S. 30~ W. 28 poles to a small lynn on the bank of the creek; S. 8~ W. 39 poles to a beech; S. 13~ E. 44 poles to a sugar tree; S. 10~ W. 82 poles to a large beech; S. 59~ W. 20 poles to a beech and maple; same course 100 poles to a stake; N. 40~ W. 80 poles; thence running back by parallel lines, N. 59~ E. 99 poles; N. 10~ E. 28 poles; N. 13~ W. 44 poles; N. 8~ E. 39 poles; N. 30~>> E. 28 poles; N. 20~ W. 90 poles; S. 77~ E. 86 poles to the beginning, with its appurtenances, to have and to hold forever, free from me, my heirs and assigns, unto the said Ann Eliza May, her heirs and assigns, that is to say, unto Ann Eliza her lifetime, then to her children, and will forever warrant and defend from all claim or claims claiming in, through, or by me. In testimony whereof I have hereunto set my hand and seal this day and date above written. Wm. Ratliff. [ Seal.]

Attest: G. W. Brown.

Colbert Cecil.

Nath Robbett."

Appellants (plaintiffs below) assert that the language of the habendum clause of said deed vested Ann Eliza May with a life estate only, with remainder to her children, and that her deed made in 1853, which purported to convey the fee-simple title to the entire tract, did in fact convey only her life estate therein, with a one-twelfth interest in fee, which she and James May inherited from one of their twelve children, who died before they executed the deed to Reuben Rowe. Ann Eliza May died in January, 1897, and this action was commenced on August 16, 1913, more than 15 years after the death of the life tenant.

Each of the appellees (defendants below) filed a separate answer, in which the material allegations of the petition and its several amendments were controverted. In another paragraph the answers interposed the 15-year statute of limitation; in another paragraph the 30-year statute of limitations was pleaded; and one defendant in yet another paragraph alleged facts which entitled it to relief under the 7-year statute of limitation. Each defendant, by way of counterclaim against the plaintiffs, averred that, since it had been in the possession of said lands, it had erected permanent, valuable, and lasting improvements thereon; that at the time it did so it in good faith believed it was the owner of the land, and built said improvements in good faith, and each defendant asks that, in case the plaintiffs, appellants here, recover said land, defendants be adjudged a lien thereon for the value of said improvements. Issue was joined, and after the taking of much evidence on both sides in depositions, the case, having been transferred by agreement to equity, was submitted for judgment, whereupon the court dismissed the petition of plaintiffs, and they prosecute this appeal.

Appellants, asserting the following proposition, urge a reversal of the judgment: (1) The deed from Wm. Ratliff, Sr., to his daughter, Ann Eliza May, and under which appellants claim, vested Ann Eliza May with a life estate only, with remainder to her children. (2) Appellants and appellee claim title through a common source. (3) Appellants and appellees are tenants in common, and in the absence of notice of hostile holding, the possession of one tenant is the possession of all, and, as there is no proof of the alleged hostile holding of appellees until within 15 years before the filing of this suit, appellees' possession was the possession of all of the tenants in common. (4) Appellees are estopped by the recitals in the deeds under which they claim title to dispute the title of appellants. (5) Appellees cannot rely on an outstanding superior title, such as the Virginia grant of 1787, with which they have no privity, to defeat the claim of appellants. (6) Nor can appellees reply upon the Silas Ratliff patent of 1860 to defeat the Branham patent of 1827, since Silas Ratliff acquired title through Ann Eliza May to a life estate and a one-twelfth undivided interest in fee in the Branham patent, and as life tenant and tenant in common Joel Ratliff and his grantees are not permitted to deny the title of the remainderman, or to acquire an outstanding hostile title, while holding under the deed granting the life estate, against a tenant in common or a remainderman. (7) The statute of limitation did not begin to run against such of the appellants as were married, or infants, at the death of Ann Eliza May in 1897, nor until said persons were relieved of disability, and the infants had 3 years after becoming 21 years of age in which to commence their proceedings. (8) The 30-year statute of limitation has no application under the facts in this case. (9) The 7-year statute of limitation cannot avail appellees.

Appellees insist that the judgment should be affirmed: (a) Because the action was one in ejectment, and the burden was upon the plaintiffs to present such a title to the land as would definitely fix their right to recover, irrespective of the weakness of the title of defendants. (b) The patent to David Branham, issued in 1827, was void, because granted upon land covered by a patent issued to Duvall and Marshall, of date in 1787. (c) Because plaintiffs failed to connect themselves by...