#### Maynard v. Thompson.

(Decided January 31, 1919.)

Appeal from Pike Circuit Court.

1. Pleading — Amendments.—Where a defendant styled his pleading "amended petition” by which a new defendant was brought into the action by summons thereon, the responsive pleading of the latter styled “Answer, Counterclaim and Cross Petition” although as a cross petition directed against other defendants, will be treated as an adverse pleading to the claim to the land in dispute of the defendant, who styled his pleading an “amended petition.”

2. Adverse Possession — Limitation of Actions — Pleading.—When limitation or adverse possession is pleaded as a bar to the title asserted by an adverse party, it must be traversed and if any disability is relied upon to avoid the running of the. limitation statute, it is new matter and must be pleaded; and the rule applies to married women no less than other persons laboring under disability.

3. Adverse Possession- — Finding of Chancellor. — Appellee’s claim of title by more than thirty years’ adverse possession of the land in dispute and her plea of limitation against appellant’s claim of *141legal title thereto, not having' been put in issue, the judgment ol the chancellor upholding her claim will not be reversed.

STRATTON & STEPHENSON for appellant.

CLINE & STEELE, S. M. CECIL and J. M. ROBERSON for appellee.

Opinion of the Court by

Judge Clarke

Affirming.

In this action filed January 6,1910, by Linnie McCoy against the heirs and surviving husband of Nancy A. Maynard, and J. P. Miller, the father of appellee, the title to about an acre and a half of land is involved, it being claimed by Linnie McCoy under title bond, alleged to have been executed to" her by Nancy Maynard and her husband, T.. J. Maynard, in 1884. A. J. Maynard, a son of Nancy Maynard, claims it by inheritance and under deeds from the other heirs of his mother. Appellee, Belle Miller Thompson, claims it under title bond from Nancy Maynard and her husband, T. J. Maynard, executed in 1884 to Greene McCoy, and several mesne conveyances; she also claims title by adverse possession in herself and those finder whom she claims, since 1884, and in addition pleads and relies upon the fifteen year and three year statutes of limitation, estoppel and champerty. The judgment of the chancellor dismissed the claims of Linnie McCoy and the Maynards, and adjudged the title to appellee, Belle Miller Thompson.

Only A. J. Maynard has appealed, so we shall confine ourselves to the controversy between him and appellee.

Although appellant was a defendant from the beginning of the action, the first pleading filed by him was on October 17, 1914, and is styled “Amended Petition,” in which he suggested the death of his co-defendant, J. P. Miller, and sought to revive the action against his heirs. In response to the summons on this “amended petition” appellee filed an answer, counterclaim and cross petition, the cross petition having been directed seemingly against only some new parties of whom she s'ought to recover.on their warranties, in the event she was evicted, and not against her co-defendant, A. J. Maynard, now appellant; but as he styled his pleading by which she was brought into the controversy “amended petition” we shall treat her answer and counterclaim as an adverse pleading to appellant’s claim, as it was manifestly intended and as it *142was evidently treated by all parties in tbe court below. In that answer, counterclaim and cross petition, and a subsequent pleading wbicb she styled “Reply of Belle Miller Thompson to,tbe petition of A. J. Maynard, &c., to be made a party,” although A. J. Maynard bad not filed a petition to be made a party, but bad been a. defendant at all times, sbe set up ber title from Nancy A. Maynard, through Greene McCoy,-N. B. McCoy, J. E. Yost, J. P. Miller and tbe heirs of J. P. Miller, and in addition in separate paragraphs pleaded title by continuous adverse possession since 1884, tbe three years’ statute of limitation, the fifteen year state of limitation and estoppel. Up until this time appellant bad filed no pleading except bis “amended petition,” but thereafter on June 23, 1916, be filed an “answer” in wbicb be simply stated that bis mother died intestate in 1903, tbe owner of tbe tract of land in controversy; that at ber death tbe land descended to ber six children and two grandchildren, subject to tbe curtesy interest of T. J. Maynard, ber surviving husband, and that‘since ber death be bad “become tbe owner of all tbe right, title and interest of bis brothers and sisters in and to tbe tract of land described in .the petition, subject to tbe curtesy, interest of T. J. Maynard; that'no other person known to this defendant owns any interest in said land,, except tbe owner of tbe life interest or curtesy interest of T. J. Maynard.” He did not deny tbe adverse possession of appellee, or those under whom sbe claims, or traverse ber pleas of limitation and estoppel, nor in fact did .be traverse any allegation of any pleading in tbe record, except in so far as bis assertion of title in himself, controverts tbe assertion of title by tbe other claimants;-,nor did any other party to- tbe action even attempt to put in issue appellee ’s claim of title by continuous adverse possession since 1884, or either of ber affirmative pleas of limitation.

It is therefore apparent upon tbe pleadings only, appellee was entitled to tbe judgment rendered in ber behalf, because of tbe thoroughly established rule thus stated in Smith v. Cox’s Committee, 156 Ky. 118:

> “When limitation is pleaded it is essential that if tbe plaintiff relied on any disability to avoid tbe running of tbe statute, this under tbe present Code must be pleaded; for it is new matter and otherwise tbe defendant would not be apprised that this objection to tbe running, of tbe statute was relied on. Tbe rule applies to married women no less than other persons laboring under disability. ’ ’

*143See also Turner v. Gill, 105 Ky. 414; Wren v. Ficklin, 109 Ky. 472; Goff v. Goff, 182 Ky. 323.

Arguing the case solely upon its merits, counsel for appellant insist that as Mrs. Maynard did not convey the land to Greene McCoy, appellee’s remote vendor, by deed, but executed only a bond for title in 1884, while she was under disability of coverture, and before the passage of the married woman’s act in 1894, the bond for title was void, and she died the owner thereof; that as she was under disability of coverture until her death, the possession of those under whom appellee claims, was not adverse. to her, and the statute of limitation did not begin to run against her. Although these propositions of law are true, yet they are not available to appellant, because of his failure to plead those facts which are new matter of avoidance of appellee’s pleas of adverse possession and limitation. If, however, we might disregard appellant’s failure to plead these matters of avoidance otherwise disclosed by the record, we might, we tliink, with equal consistency overlook the failure of appellee to plead the thirty year statute of limitation, which the record discloses was available to her, and a complete bar to apellant’s claim of title which was first asserted in his answer filed June 23, 1916, more than thirty years after the beginning of the continuous adverse possession in 1884, of appellee and those under whom she claims; so whether we regard the pleadings only of appellant and appellee, or the merits of the case as disclosed from the record, the judgment of the chancellor is warranted.

Wherefore, the judgment is affirmed.