Superior Oil Corp. v. Alcorn

• Decision Date: 08 May 1931
• Citation: 47 S.W.2d 973,242 Ky. 814
• Parties: SUPERIOR OIL CORPORATION et al. v. ALCORN et al.
• Court: Kentucky Court of Appeals

47 S.W.2d 973

242 Ky. 814

SUPERIOR OIL CORPORATION et al. v. ALCORN et al.

Court of Appeals of Kentucky

May 8, 1931^[1]

As Modified on Denial of Rehearing Jan. 17, 1930.

Appeal from Circuit Court, Estill County.

Action by Harry Alcorn and others against the Superior Oil Corporation and others.From a judgment for plaintiffsdefendants appeal.

Affirmed.

Jouett & Metcalf, of Winchester, and Hugh Riddell and Clarence Miller, both of Irvine, for appellants.

E. E Rice, of Irvine, and L. T. Wolford and Bruce & Bullitt, all of Louisville, for appellees.

DRURY C.

Harry Alcorn et al., hereinafter referred to as the Alcorn heirs were adjudged to be the owners of a tract of land containing about 25 acres, referred to as the Daniels tract, and the Superior Oil Corporation et al. have appealed.

When the Alcorn heirs began this litigation they sought to recover this land and asked for an accounting for the oil removed therefrom, but, by a stipulation entered into by the parties, the matter of accounting was left in abeyance and only the question of title was adjudicated in the trial court, and that question only is before this court, on this appeal.

On October 28, 1878, Caroline Wheeler conveyed to Armilda Alcorn a tract of land illustrated by map No. 1,

(Image Omitted)In this deed Mrs. Wheeler gave this description of this land: "The following boundary of land in Estill county, Kentucky, on Cow Creek, binding on Jessie Barnes, Gardner and Moore, James W. Muncie, W. J. Campbell, Leroy Alcorn, John S. Campbell and thence to the beginning, supposed to contain 100 acres."One of the contentions made is that this description is too vague and indefinite, but reading this description and referring to the map will show the contrary.The map is abundantly supported by the evidence.

The map is abundantly supported by the evidence.We have made this from the evidence for the purpose of illustration, it is given for that purpose only, and we do not mean to say any one is concluded by it or cannot in other litigation question its correctness or cannot show it is incorrect if in fact it is.

At or about the time of this purchase Armilda Alcorn and her husband, Leroy Alcorn, moved upon a tract of land referred to in this record as the Campbell rectangle, which had been acquired by Leroy Alcorn and John S. Campbell and partitioned between them.See the rectangle A, B, C, D, on map.

They did not at first know the full extent of this rectangle as a result of which they partitioned a portion of it in 1869 and the remainder in 1877.To illustrate these partitions, what Alcorn got in partition of 1869 is shaded by lines running north and south and what he got in partition of 1877 by lines running east and west, and the lines run the reverse of this on the parts Campbell got.

Leroy Alcorn built a house upon that portion he got in the division made in 1869, at the point marked (A) on the map, and there he and Armilda lived until she died, August 18, 1900.

After the acquisition by Armilda of this Caroline Wheeler land, this Daniels tract, other parts of this Wheeler land and what Leroy had got out of the Campbell rectangle were used and treated by Leroy and Armilda Alcorn as a single tract or farm.

The families of W. A. L. B. Sharp and Audley Campbell figure so prominently in this record that we have prepared a partial family tree showing the relationship of the various members of these families, the names of the plaintiffs being printed in italics:

(Image Omitted)

During the lifetime of Armilda she and Leroy sold a portion of this Wheeler land to their son, Joel Alcorn(see plat).After the death of Armilda, Leroy Alcorn sold another portion of this Wheeler land, see part marked Millard Abney, another portion he sold to Armilda's niece, Lou Horn, and on November 23, 1900, he sold to Armilda's nephew, Joseph D. Campbell, a tract of land largely taken from the Campbell rectangle, but a portion of which was a part of this Wheeler land, and another portion was land he had bought of John J. Alcorn.

We reproduce here, as map No. 2, a map in the record upon which the land conveyed by Leroy Alcorn to Joseph D. Campbell is shaded for illustration.That part of this land sold to Joseph D. Campbell which lies north of the line C. D. of the Campbell rectangle was a part of the Wheeler land.This portion is marked "Daniels tract," it is the land in controversy, and is the land of which the Alcorn heirs were adjudged to be the owners.It is shaded by lines running east and west.

(Image Omitted)

The appellants urge a number of grounds for reversal, which will be noticed in the course of this opinion, but the principal and controlling question is: What estate in the land in controversy did Leroy Alcorn have at the time, or take upon the death of his wife, Armilda Alcorn?If he had matured title in himself by adverse holding and possession, then his deed passed that title to Joseph D. Campbell.If he had a life estate by curtesy, then his conveyance only passed that life estate.Section 2291andsection 2351 of the Kentucky Statutes are just as much a part of this deed as if they were written into it, and the effect of these statutes is to make of this deed a conveyance of just what Leroy Alcorn had.If all he had in this property was a life estate by curtesy, that is all that passed by this deed.The Superior Oil Corporation et al. realize this, and have diligently endeavored to show this Daniels tract had been acquired by Leroy Alcorn by adverse possession.

He and Armilda Alcorn were from March 12, 1859, until her death, husband and wife, living together in that relation.He was, by virtue of the statutes of this state then in effect, entitled to the use of her land with power to rent it out for not more than three years at a time and receive the rents.See Rev. St. 1852, p. 387, c. 47, art. 2, § 1; Gen. St. 1873, p. 518, c. 52, art. 2, § 1.Moreover, the statutes of limitation do not run against a married woman, seesection 2506, Ky. statutes.Besides, a husband who takes possession of his wife's land under his right as her husband takes and holds for her, his possession is not adverse, and can never ripen into title.SeeMeraman's Heirs v. Caldwell's Heirs, 8 B. Mon. 32, 46 Am. Dec. 537;Watt v. Watt,39 S.W. 48, 19 Ky. Law Rep. 25;Berry v. Hall,11 S.W. 474, 11 Ky. Law Rep. 30;30 C.J.p. 580 N. 17, andBowling v. Little,182 Ky. 86, 206 S.W. 1.

Appellants contend that Leroy Alcorn took possession of the Daniels tract after he and John S. Campbell acquired and partitioned the Audley Campbell rectangle, and that his possession of it was but a continuation of the possession and inclosure maintained by Audley Campbell prior thereto; but the testimony relied on to sustain this contention is wholly insufficient to show any claim or possession by Leroy Alcorn or Audley Campbell outside of or beyond the Campbell rectangle.The most that is shown is that, some two or three years prior to the execution of the deed from Caroline Wheeler to Armilda Alcorn, there was a fence along the northwestern line of the Daniels tract.See line 3--4.But there is no testimony that Audley Campbell built that fence, or that Audley Campbell claimed to it.On the contrary, it is shown that Audley Campbell never claimed beyond the line of the Campbell rectangle.

If it be conceded that Audley Campbell had reduced this Daniels tract to his possession at the time of his death in 1867, there is not a line of testimony as to when he did so, nor as to how long he had maintained it.There is no testimony that Leroy Alcorn, or any one prior to him, had before 1878 cleared, inclosed, or cultivated any part of the Daniels tract.Neither he nor any person under whom it is claimed he acquired possession had any color of title to it.The fence referred to did not inclose it, and there is no testimony showing, nor any claim made, that there was any marked and defined boundary around it.It is well settled that, before one can acquire an actual possession of land to which he has no title, he must enter thereon with the intention of holding it, and this intention is indicated by some act or fact, such as a clearing or inclosure, or by a well-marked and plainly defined line surrounding it.If he has no color of title, he must claim to a well-marked and plainly defined boundary, in which case he will be held to be in actual possession of so much as he actually reduced to his possession, and in possession by construction to the well-marked and plainly defined line.But, if he has no well-marked line surrounding his claim, then his possession is limited to a clearing or inclosure.If he has neither clearing, inclosure, nor a well-marked line, then he has no possession whatever.Slaven v. Dority,142 Ky. 640, 134 S.W. 1166;Le Moyne v. Roundtree,135 Ky. 40, 121 S.W. 960;Whitley County Land Co. v. Powers' Heirs,146 Ky. 801, 144 S.W. 2.

It must be held, therefore, that, prior to the date of the deed from Caroline Wheeler to Armilda Alcorn, Leroy Alcorn had no possession of the land in controversy which the law recognizes.At that time, and thereafter, until her death in 1900, the possession followed the title and was in Armilda Alcorn, and it follows that, upon her death, Leroy Alcorn took a life estate by the curtesy, under the provisions of Revised Statutes 1852, c. 47, art. 4, § 1;he and his wife having married March 12, 1859.

By this deed to Joseph D. Campbell, dated November 23, 1900, Leroy Alcorn conveyed only what he had, that is, a life estate which did not cease until his death in 1919, when appellees first had the right to institute an action for the recovery of their inheritance.The rule is that limitation will not run against a remainderman during an...