Overton's Heirs v. Woolfolk

• Decision Date: 29 May 1838
• Parties: Overton's Heirs v. Woolfolk and Others.
• Court: Kentucky Court of Appeals

36 Ky. 371

Overton's Heirs v. Woolfolk and Others.

Court of Appeals of Kentucky.

May 29, 1838

FROM THE CIRCUIT COURT FOR MEADE COUNTY.

Mr. J T. Morehead for appellants.

Mr Owsley for appellees.

OPINION

EWING JUDGE:

Prior to 1782, Henry French executed his obligation to Clough Overton, binding himself to convey to him eight hundred acres of land on Otter Creek, in part consideration for a thousand acres which Clough Overton bound himself to convey to him, on Salt River. Overton was killed at the battle of the Blue Licks, 1782; but before his death, he made his will, by which he devised the tract on Otter Creek to his father, John Overton.--Henry French, with a view to the specific enforcement of his contract for the land on Salt river, being ignorant of the execution of the will, and believing that Richard Overton, the elder brother of Clough, was his heir at law--assigned the plat and certificate of survey for the land on Otter, to him, without his knowledge, participation or consent; and the patent issued in his name.

History of the titles and claims of the parties, respectively.

John Overton devised the land to his wife, Ann B. Overton, and died, in 1796.

Ann B Overton died in 1814, leaving the complainants and two of the defendants, John and Dabney C. Overton, also Richard Overton since deceased, her heirs at law.

Richard Overton died in 1816, having first made and published his last will and testament, in which, with respect to the land on Otter creek, he uses the following language: " I will and bequeath to my beloved brother Dabney C. Overton, and my beloved sister Polly Overton, all the land I am possessed of on Otter creek, Hardin county, or that I am interested in, it being my part of the tract of land devised by my father, John Overton, to his wife, Ann B. Overton, to be equally divided between them."

John Overton, the younger, took possession of the land under hs mother's title, about 1810, and commenced erecting a mill. Afterwards, he purchased from her or claims to have purchased, all the land on the east side of Otter creek, and one acre to abut his mill dam against, and also one hundred acres sold by him to Bate, on the west side, and took her bond for a conveyance, but it does not appear that any deed was executed for his purchase during her life. After her death, and the death of Richard, towit, in 1817, four of the heirs, to-wit, George, William, Dabney C. and Mary Overton, recognizing the bond of their mother, conveyed to John Overton one hundred and ninety-seven acres, two roods and six poles of the land on the east side of the creek, and the acre of ground for an abutment on the west. The conveyance seem to have been withdrawn with a view to be executed by all the heirs, but was never signed or executed by the others.

John Overton sold and conveyed the one undivided moiety of this tract, and the mills which he had erected on the same, to Charles Fishback, and conveyed the other half, in trust, to one Shacklett, to secure Woolfolk in the sum of about four hundred dollars, due him--as appears from the proof, though neither Fishback's nor Shacklett's deeds are exhibited.

In this state of things, two executions issued from the Hardin Circuit Court, on replevin bonds--one in favor of Caldwell, the other in favor of Robb, against John Overton as principal, and Mary Overton and Dabney C. Overton as his sureties, both amounting to a little upwards of three hundred dollars, and were levied upon the interest of John, on the east side of the creek, and of Mary and Dabney C. on the west side, which were sold, except one hundred and fifty one acres of the interest of Mary and Dabney C., to be taken off the west end of the tract; and Woolfolk became the purchaser, subject to his trust upon the interest of John, and the sheriff executed a deed to him.

The sale was made in 1819. Woolfolk, by suit in ejectment against John and Dabney C., recovered a judgment, and was put into possession of the undivided half of John's interest on the east side of the creek, and of Dabney C. and Mary's interest on the other side, in 1826.

In 1827, the bill in this case was filed by the complainants, part of the heirs of Ann B. Overton, and who are also heirs of Richard Overton, deceased, against John and Dabney C. Overton, the other heirs, (Mary Overton having died without issue, intestate,) and Woolfolk and French's heirs, for a partition of the eight hundred acres of land, and for general relief.

The Circuit Court dismissed the complainant's bill, as to Woolfolk, and as to the whole tract, except the one hundred and fifty one acres excepted out of the sale by the sheriff, and decreed that to be divided among the heirs; and the complainants have appealed to this Court.

In support of the decree of the Circuit Court, it is contended, on the part of the appellee, Woolfolk:--

First--that the statute of limitation, or lapse of time, bars the remedy of the complainants.

Second--that Woolfolk being in the adverse possession, a suit in equity for a partition will not lie, until the possession is recovered at law

Third--that the title of the complainants is doubtful and suspicious, and has been denied by Woolfolk, and therefore they should be left to their remedy at law.

First. There is no pretext for the application of the statutes of limitation. The legal title was vested in Richard Overton, through mistake, without his knowledge or consent, and against his will, and he never claimed it as his property or exercised any dominion or control over it, as such, but always, up to his death, recognized the right of his father and mother to the land; and when he died, in 1816, (having only about two years before, entered on the land, claiming only his part as one of the heirs of his mother,) he devised, as will be more fully shown hereafter, only his part as one of her heirs. Though the legal title was in him, he held it in trust for the rightful proprietors, and never claimed title, or held the possession adversely to them for a day. Under those circumstances, at law, the statute would not run, neither should it, or lapse of time, be permitted to bar in chancery.

One holding a title bond, died, having devised the land to his father; who devised it to his wife, and died; but the obligor in the bond, believing that a brother of the obligee was his heir and entitled to the land, assigned the entry to him, and to him the patent issued, but this was done without his know edge, and he never claimed the land under the patent, but, on the contrary, admitted that it belonged first, to his father, then to his mother; under these circumstances, the legal title was held in trust, for the father and those claiming under him; and neither the statute of limitations at law, nor lapse of time in chancery, will apply to bar a suit for partition, by some of the heirs of the mother (last devisee), against their co-heirs, and against a purchaser in possession deriving title from the mother, through another heir.

Second. We know of no adjudged case, in which the principle has been settled, that the bare fact of an adverse holding of a part of the land, by one joint-tenant or tenant-in-common, would be a good ground to defeat the jurisdiction of a court of equity, in a bill for partition, until after the right to possession was settled at law; nor do we believe that policy or principle would require the adoption of such a rule. It would tend to circuity of action, and useless litigation, which is not favored by the chancellor, who delights to do final and complete justice at once.

The bare fact, that a part of the land of which partition is sought by bill in ch'y, is adversely held by one joint-tenant or tenant-in-common, will not prevent the court from taking jurisdiction to decree the partition, before the controversy as to the title is settled at law.--

Courts of Equity act upon the title--compelling conveyances in severalty, to those entitled to partition; and, in order to end the controversy, will compel surrenders of possession, in conformity to the conveyances.--

Hence, it is said, an averment of possession only, in a bill for partition, without an averment of title, is insufficient.

A court of equity acts upon the title, and compels a conveyance in severalty, to each of the tenants, of the parts allotted to each, and, as incident to this power, and as a means of rendering the title of each complete, and winding up the whole controversy, may act upon the tenants, and compel them to surrender the possession, according to the partition, in the same manner that it can compel a surrender of possession in a case where there is a decree for a conveyance, in the specific enforcement of a contract. And it is said that in a bill for partition, the allegation of possession, is not sufficient, but the allegation of title is required. 2 Akyns, 382, Cart wright v. Poultney; Amb. 236, Parker v. Gerard. The title is the principal thing enquired into in chancery, which draws after it the possession.

But there is more weight in the third objection.

In the case of the Bishop of Ely v. Kendrick, Bunb. 322 the bill, for partition, was dismissed, because the title was denied. But we think that case is not sustained by the policy or reason of the law. If a bare denial of the title, when there was no reasonable doubt or suspicion attending it, would authorize the dismissal of the complainant's bill, it would place this equitable jurisdiction, which has been established by a long train of decisions, and is deemed of much public convenience, at the mercy of every profligate or unconscientious defendant, and render the Court the mere ministerial agent to carry into effect the wishes of the parties in cases where there were no matters of...