Bishop, et al. v. Van Winkle, et al., Pulaski, 1909

BISHOP et al. v. VAN WINKLE et al.

COURT OF APPEALS OF KENTUCKY

117 S.W. 345; 1909 Ky. LEXIS 501

March 19, 1909, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. Action by E. S. Van Winkle and others against Cy Bishop and others. From a judgment for plaintiffs, defendants appeal.

DISPOSITION: Reversed.

COUNSEL: T. Z. Morrow, for appellants.

Fox & Jackson and O. H. Waddle, for appellees.

JUDGES: HOBSON, J.

OPINION BY: HOBSON

OPINION

 [*345]  HOBSON, J. - Previous to the year 1861 Thomas Bishop owned a tract of 110 acres of land in Pulaski county. He executed to George M. Merick the following writing. "This indenture of bargain and sale, made this 23d day of March, 1861, between Thomas Bishop, of the county of Pulaski and state Kentucky, of the first part, and George M. Merick, of the second part, of the county and state aforesaid, witnesseth: That said Thomas Bishop, for and in consideration of the said Merick's binding himself and his heirs to pay one note in the hands of Charles Bishop of $50, and find for and decently supporting Thomas Bishop and Sarah, his wife, during their life, or so long as they may live with the said Merick, hath this day bargained and sold, and by these presents doth grant, bargain, and sell, unto the said George M. Merick, his heirs and assigns, all that tract or parcel of land of my personal estate situated, lying, and being in the county  [**2] of Pulaski and on the waters of Pitman creek, and bounded as follows: [Here follows boundary.] To have and to hold to the said George M. Merick, his heirs and assigns, forever; and said Thomas Bishop binds himself, his heirs and assigns, to make to the said George M Merick a general warranty deed to the above-named tract of land, that is a warrant, forever, both against the claim of himself and heirs, or claim or claims of any others whatever. In witness whereof, I hereby set my hand and affix my seal the day and date above written. Thomas Bishop."

After the deed was made, Merick moved into the house where Thomas Bishop and his wife lived, and took care of them for a while; but in a year or so they fell out, and Bishop and wife left. On March 25, 1865, while things were in this shape, Merick executed a note to E. S. Van Winkle and W. McKee Fox for $150, and gave them a mortgage on the tract of land to secure the note. Soon after this Merick left the state to escape a felony charge against him, and has never since returned. After he had left the state, Bishop and wife moved back to their old home and took up their residence there. Thomas Bishop died, living there, about the year 1869.  [**3] The wife lived there until she died, in 1894. In the year 1867 Fox and Van Winkle foreclosed their mortgage by a judicial proceeding against Merick, and bought the land for the debt. The sale was confirmed, and a deed was made to them; but they took no steps to get possession of the land. After the death of Thomas Bishop, Cy Bishop moved on the land with the consent of Mrs. Bishop, who was his grandmother, and he has since lived on the land or held it by his tenants. Since her death he has been exclusively in possession of it. He and she paid the taxes on it. On May 13, 1904, the heirs at law of Van Winkle and Fox brought this suit to recover the land from Cy Bishop, and at the conclusion of the evidence on both sides, showing the facts we have stated, the court instructed the jury peremptorily to find for the plaintiffs; and, this having been done, the defendants appeal.

Van Winkle and Fox had no title to the land, except such as they derived from George M. Merick. Their claim originated in the mortgage which he executed, and when they purchased at the commissioner's sale in 1867 they acquired only such title as he had. They stand in his shoes, and whether or not they can recover must  [**4] depend upon whether or not he could have recovered, if he had not made a mortgage on the land, but had retained the title which he had, and had brought this suit in his own name against Cy Bishop to recover it. The consideration of  [*346]  the deed which Thomas Bishop executed to Merick was his agreement to pay a note to Charles Bishop of $50 and to decently support Thomas Bishop and Sarah Bishop, his wife, during their lives, or so long as they might live with him. When he committed a felony, and fled from the state, he abandoned his contract; and the two old people, when he thus abandoned his contract and the land, had a right to resume possession of it. After he had so abandoned his contract, and they had so resumed possession, and held the land as long as they lived, he would not be allowed, nearly 40 years afterwards, to assert a right to the land under the contract which he abandoned while they lived. If he had set up claim to the property, and had brought this suit, nearly 40 years after he had abandoned the contract and left the state, the court would have treated his claim as stale, and would have refused him relief upon the ground that he was estopped to claim under the deed. This  [**5] question was before us in the recent case of Lowe v. Stepp, 116 S. W. 293. As Fox and Van Winkle simply have his title, their rights are no greater than his.

When Merick had fled from the state, abandoning the land and his contract, Thomas Bishop resumed possession, claiming not under Merick, but holding adversely to him. When, in 1867, Fox and Van Winkle bought at the judicial sale. Thomas Bishop was in possession, holding adversely to them, and he continued to hold adversely to them until he died. After his death, his widow and grandson held the land, claiming it under him, and adversely to Fox and Van Winkle. The deed which Thomas Bishop had made to Merick in 1861 was not signed by his wife, and therefore did not pass her right of dower; but this was before the passage of the homestead law in 1866, and therefore, as against that deed, or the mortgage executed in 1865, she could not claim a homestead. If the title to the land was in Merick, and passed from Merick to Fox and Van Winkle, they could at any time after the death of Thomas Bishop have brought a suit against her and recovered the land, after laying off her dower to her. She did not hold the land as dower. She held It under  [**6] her husband, and her possession was adverse to Fox and Van Winkle. If she was entitled to a homestead in the land, it was only because her husband died the owner of it. What was the nature of the title of Thomas Bishop at his death we need not determine. It is sufficient to say that Fox and Van Winkle simply stand in Merick's shoes, and will not be allowed, after so great a lapse of time, to say that Merick did not abandon his contract, or to assert any right under an instrument which be abandoned, after an adverse possession of so many years by Thomas Bishop and those claiming under him. Under the evidence the circuit court should have instructed the jury peremptorily to find for the defendants.

Judgment reversed, and cause remanded for further proceedings consistent herewith.