#### Harrington v. Williams, et al.

(Decided January 30, 1917.)

Appeal from Shelby Circuit Court.

Joint Tenancy — Adverse Possession — Limitation of Actions. — ■ Where one joint tenant has openly denied the title of his co-tenant and been in possession of and claiming the land himself, exclusive of the co-tenant, for more than thirty years, and his holding of such possession has been so open and notorious against that of the co-tenant as to manifest a repudiation of the latter’s right, such holding will be regarded as adverse, and any right the cotenant or his heirs may have had in the land will be barred by both the-fifteen-year and the thirty-year statute of limitations.

BEARD & PICKETT for appellant.

BEARD & RIVES for appellees.

*576Opinion of the Court by

Chief Justice Settle

Affirming.

This appeal questions the validity of a judgment of. the Shelby Circuit Court decreeing the sale of 6 acres and 122 poles of land lying in Shelby county, and also the sale made of the land under that judgment, at which the appellant, R. G. Harrington became the purchaser at the price of $442.14; it being his contention that the deed directed to be made to him by the circuit court will not vest in him a good title to the land, his objection to the sufficiency of the title having been raised by exceptions filed by him to the report of sale, which were overruled by the circuit court, the sale confirmed and a deed ordered to be executed by the commissioner to the purchaser.

It appears from the record that the land in question was conveyed in 1868 by George S. Wickersham and wife to Mary Canna.dy and John Edwards, persons of color, jointly, at the price of $465.00; $235.00 of which was cash in hand paid (presumably half by each of the grantees), and for the remainder of the consideration ■ — $230.00—the grantees executed their joint promissory note, payable twelve months after date, secured by a lien retained by the deed upon the property; that the purchasers at once took possession of the land and remained in the joint possession thereof until the death of John Edwards, which occurred two or three years later, from which time it remained in the possession of the other grantee, Mary Cannady, until her death, January 22, 1912. The latter left surviving her a number of children and grandchildren named in the petition, who brought this action to obtain a decree for the sale of the land qnd division of its proceeds among them as the heirs at law of Mary Cannady; the 'Sale of the land being asked upon the grounds of its indivisibility, and that the share of each heir at law therein was of less value than $100.00; and such were the grounds upon which its sale was adjudged by the court.

The exceptions filed by appellant, the purchaser at the decretal sale, asked that the sale be set aside and that he be discharged from liability upon the bonds executed by him to the máster commissioner for the property, because of the fact that John Edwards, to whom and Mary Cannady the land was jointly conveyed, if living, owns an undivided half thereof, or if *577dead, such interest is owned by his heirs at law, and that neither Edwards nor his heirs at law were made parties to the action; consequently neither he nor they were divested of the interest in the land acquired by him under the deed from Wickersham.

It is alleged in the petition, and shown by evidence appearing in the record, that the death of John Edwards occurred about forty-two years before that of Mary Cannady, and forty-five years before the institution of this action; that at the time the deed was executed John Edwards was -blind, unmarried, and until his death was cared for by Mary Cannady; that he left surviving him neither father, mother, brother, sister, uncle, aunt, niece, nephew or any other relatives, direct or collateral; that Mary Cannady, before his death, and at its maturity, paid the note executed by them to their grantor for the balance of the purchase money due on the land; and from the date of John Edwards’ death down to her own death claimed and held possession of the land as the sole owner thereof, such possession being continuous for more than thirty years and adverse to any heirs at law that may have been.left by John Edwards, and all others; and that during this time no claim was asserted to the land or any interest therein by any person or persons claiming to be heirs at law of John Edwards.

None of the foregoing facts or the evidence introduced by appellees in support thereof were attempted to be controverted by any evidence in behalf of the appellant, in view of which they must be taken as true.

It is, however, insisted by appellant’s counsel that this long possession of the land by Mary Cannady during her life, and that of appellees since her death, must be regarded as amicable to the heirs at law of John Edwards, if any, as their relation to her and the land was that of joint owners dr tenants in common.

There would be much in this contention, but for the showing made by the evidence that John Edwards was not survived by any one entitled to inherit his interest in the land as an heir at law. It is true that the possession of a joint owner of land is, as a rule, that of all the tenants in common; but it is also true that a joint tenant may set up, claim and acquire possession adverse to his co-tenants, which will start the statute of limitations to running and ultimately make it a bar. If one tenant *578openly denies the title of his co-tenant, and is in possession of and claims the property himself, exclusive of the co-tenant, and his holding of such possession continues fifteen years and is so open and notorious against that of the co-tenant as to manifest a repudiation of the latter’s right, the holding will then be regarded as adverse and a bar to the other co-tenant’s right of entry. Godsey v. Standifer, 31 R. 44; Gill v. Dewitt, 7 R. 587; Gill v. Fauntleroy’s Heirs, 8 B. Mon. 186; Larman v. Huey’s Heirs, 13 B. Mon. 238; Shackleford v. Smith, 5 Dana 240; Riggs v. Dooley, 7 B. Mon. 238; Greenhill v. Biggs, 85 Ky. 156; Wilson v. Hoover, 154 Ky. 1.

It would have been the better practice for appellees to have made the unknown heirs of John Edwards parties to the action and have proceeded against them by warning order as permitted by sections 23, 24 and 499, Civil Code of Practice. But it is patent from the facts presented by the record in its present form, if that course had been pursued, the showing of adverse possession of the land maintained by Mary Cannady for more than thirty years before her death, and by the appellees since her death, would have defeated any claim that might have been asserted thereto in behalf of such unknown heirs. It seems to us that the fifteen-year statute of limitations' would have prevented the assertion of such right; and in any event, that the thirty-year statute would have been a complete bar, as it declares that: “The period within which an action for the recovery of real property may be brought shall not, in any case, be extended beyond thirty years from the time at which the right to bring the action first accrued to the plaintiff, or the person through whom he claims by reason of any death or the existence or continuance of any disability whatever.” L. *&*N. R. R. v. Thompson, 105 Ky. 190; Rose v. Ware, 25 R. 947; Bransom v. Thompson, 81 Ky. 387; Dotson v. Dotson, 172 Ky. 641.

It follows from what has been said that the exceptions filed by appellant to the report of sale were properly overruled. Wherefore, the judgment overruling them and confirming the report of sale is affirmed.