Potter v. Stanley

• Decision Date: 02 March 1920
• Citation: 219 S.W. 167,187 Ky. 292
• Parties: POTTER v. STANLEY.
• Court: Kentucky Court of Appeals

219 S.W. 167

187 Ky. 292

POTTER v. STANLEY.

Court of Appeals of Kentucky.

March 2, 1920

Appeal from Circuit Court, Pike County.

Action by London Stanley against Levi Potter. Judgment for plaintiff, and defendant appeals. Affirmed.

Cline &amp Steele, of Pikeville, for appellant.

F. W Stowers, of Pikeville, for appellee.

HURT J.

William B. Vanover died on November 10, 1902, the owner of certain lands in Pike county of which he had the possession and was residing thereon with his wife, who is now the appellee London Stanley. Thereafter on September 5, 1903, she claims to have intermarried with, and to have become the wife of, one Wilburn Estepp. Estepp procured a judgment of the Pike circuit court granting him a divorce from her in 1908. Since that time she has become the wife of one Stanley, and hence her present name. On September 18, 1903, she, in consideration of the sum of $335, undertook to sell her unassigned dower in the lands of her deceased husband, William B. Vanover, to the appellant, Levi Potter, who had become the owner of the lands, subject to her right of dower, by purchase from the heirs of Vanover. She executed a deed to Potter purporting to convey her entire interests in the lands to him, and he took possession of them and has since sold them to other parties, who were defendants in the action in which the judgment appealed from was rendered. On July 17, 1916, she instituted this action against Potter and his vendees to recover and to have assigned to her dower in the lands, alleging that she was the widow of William B. Vanover, who owned the lands at his death, and thereafter she married Estepp, and while the wife of Estepp, and laboring under the disability of coverture, she, without being joined by her husband, executed the deed to Potter, and for such reason the sale and conveyance were void. Her husband did not join in the deed and had not theretofore conveyed the lands. She prayed that dower be assigned to her in the lands and for the recovery of the portions of the rents in same to which she might be entitled. Appellant by answer denied that appellee was a married woman at the time she executed the deed to him, or that she was ever married to or the wife of Estepp, and further averred that at the time of the execution of the deed she represented herself to be an unmarried woman, and fraudulently procured him to accept the deed and pay to her the sum of $335 for the lands, which she had never repaid nor offered to repay to him, and was therefore estopped to rely upon her coverture to avoid the effect of the deed which she had executed to him.

The affirmative averments of the answer were denied by a reply, and in her testimony she offered to repay the $335 as a set-off to the rents to which she was entitled.

The court adjudged that the appellee was the wife of William B. Vanover at his death, and as his widow was entitled to dower in the lands owned by him, and that thereafter she became the wife of Estepp, and was laboring under the disability of coverture at the time she executed the deed to Potter and her husband did not join therein, and she was not estopped by any representation or acts from asserting the invalidity of the deed, and that dower should be assigned to her in the lands. The rents were set off against the taxes, etc., upon the lands, and Potter was given a lien upon her dower in the lands to secure the payment to him of the $335. From the judgment Potter has appealed. He seeks a reversal of the judgment upon the grounds: (1) The right to recover dower by the appellee was barred by the statutes of limitation; (2) the court erred in holding that appellee was a married woman at the time of the execution of the deed.

(a) Touching the contention that appellee's cause of action was barred by the statute of limitations, it would suffice to say that appellant did not plead nor rely upon the bar provided by any statute of limitation in his defense to the action in the trial court, and has raised the question for the first time through the brief of his counsel in this court. A defense is not generally allowed for a litigant who does not ask it. The defense of limitations is one which a litigant may waive if he desires to do so, and, having elected to waive it in the trial court, it is too late to rely upon it in this court, which has appellate jurisdiction only of such matters as are in controversy in the action. Baker v. Begley, 155 Ky. 234, 159 S.W. 691; Green County v. Howard, 127 Ky. 385, 105 S.W. 897, 32 Ky. Law Rep. 243; Jolly v. Miller, 124 Ky. 114, 98 S.W. 326, 30 Ky. Law Rep. 341; Childers v. Bales (Ky.) 124 S.W. 295; Yager's Adm'r v. Bank, etc., 125 Ky. 184, 100 S.W. 848, 30 Ky. Law Rep. 1287; Louisville v. O'Donaghue, 157 Ky. 243, 162 S.W. 1110; Davie's Ex'x v. Louisville, 159 Ky. 252, 166 S. W.

969; Taulbee v. Hargis, 173 Ky. 437, 191 S.W. 320, Ann. Cas. 1918A, 762.

The defense of limitation, however, upon the facts of this case would be unavailing, as the cause of action arose on the 18th day of September, 1903, and the action was instituted on July 17, 1916, less than 15 years after the cause of action arose. The husband of appellee, if she then had one, did not join in the deed she made to Potter, and had not theretofore conveyed, and hence the deed was absolutely void, and did not confer any right upon Potter and took none away from the appellee. Syck v. Hellier, 140 Ky. 388, 131 S.W. 30; Mays v. Pelley (Ky.) 125 S.W. 713; Heck v. Fisher, 78 Ky. 643; Kennedy v. Ten Broeck, 11 Bush, 241; Louisville Railway Co. v. Stephens, 96 Ky. 401, 29 S.W. 14, 16 Ky. Law Rep. 552, 49 Am. St. Rep. 303; Sandifer v. Hardin, 10 Ky. Op. 958. Her right to entry arose at once, and her cause of action arose simultaneously with her right of entry. If Potter took possession under the deed, it would require 15 years of such possession to ripen his title, even as against one who was laboring under no disability. Under section 2505, Ky. Stat., any person may institute an action for the recovery of real property within 15 years from the time his cause of action first accrued, and a married woman is not discriminated against in this particular, unless the facts are such as to bring the transaction within the provisions of ...