#### Wolford, et al. v. Smith.

(Decided January 23, 1912.)

Appeal from Pike Circuit Court.

Adverse Possession — Parol Purchase. — A, who owned a remainder interest in land, placed B in possession of it under a parol purchase, hut, before the expiration of the life tenancy, the life tenant and the remainderman sold the land: Held, that the possession *342of B under his entry made by the consent of the remainderman did not have the effect of putting him in the adverse possession of the land, as the remainderman had no right to or interest in the land during the continuance of the life tenancy.

ROSCOE VANOVER and STRATTON & STEPHENSON for appellants.

J. M. BOWLING for appellee.

Opinion of the Court by

Judge Carroll

Reversing.

In 1876 Liviniah Smith obtained a divorce from Johnathan Smith. In the judgment Liviniah Smith was adjudged :

> “The possession and exclusive use of the lands upon which she resides for the support of herself and children as long as she may live and be unmarried; if she should marry again, then her right to the possession shall cease.”

The land mentioned in this judgment contained sixty acres, more or less. At the time this judgment was rendered, the parties had three children living, Joseph F., Julia and Aaron Smith. This controversy is between Aaron Smith, who is the appellee, and the appellants, E. S. Wolford and D. W. Dotson, and involves the ownership of a part of the tract of land above mentioned.

It appears that in 1902 Johnathan Smith and Liviniah Smith and Joseph F. Smith conveyed to the appellant, Wolford and Dotson, in consideration of $350, the land given for life to Liviniah Smith by the judgment. In 1907 Wolford and Dotson conveyed to the Alma Coal Company the mineral rights in the land, and in 1910 the coal company brought a suit against Wolford and Dotson for a specific performance of the contract, making Aaron Smith a party defendant upon the ground that he was interfering with its right to the use and enjoyment of the land. In answer to this suit, Aaron Smith set up that in 1893 he bought the land in controversy from his father, Johnathan Smith for $25; that his father executed to him a deed, but afterwards and before the deed was put to record, secured possession of the same and destroyed it; that his father marked off the boundary purchased and placed him in the possession of it, and that continuously from that time he has been in the peaceable, open and adverse use and possession of the land, and had cleared up about twelve acres, fenced practically the en*343tire boundary, erected a house on it, and set out a small orchard. He averred that the deed made by Johnathan Smith, Liviniah Smith and Joseph F. Smith was cham-pertous, as it was made at a time when he was in actual possession of the land, and that when the deed was made the grantee in the deed, Wolford, knew that he was the owner and in the occupancy of the land. He asked that the deed made by Johnathan, Liviniah and Joseph F. Smith he conceited, and he be quieted in the possession of his land.

To this answer a reply was filed, controverting its allegations, and setting up affirmatively that the tract of land conveyed to them was the same land upon which Liviniah, who was yet living and unmarried, resided and in which she had a life estate under the judgment. They further averred that when they bought the land, Johnathan and Liviniah and Joseph F. Smith were in the possession of the same, and Aaron Smith resided in. the State of Virginia and was not in the possession oi any part of the land. That they were purchasers for a valuable consideration, without notice of any claim of Aaron Smith.

Hpon hearing the case, the lower court adjudged that when Wolford and Dotson became the purchasers of the land in 1902, A. W. Smith was in the actual and adverse possession and occupancy of the same, and that the conveyance-to them by Johnathan Smith and his divorced wife was champertous. He further adjudged that Aaron Smith was the owner of the land and entitled to he quieted in his possession. From this judgment this appeal is prosecuted.

The evidence on behalf of Aaron Smith was that in 1893 his father, Johnathan Smith, divided the home farm, the one he owned when the judgment in the divorce proceedings was instituted, and which was given to his wife for life by the judgment, between him and his brother, Joseph F. Smith, and marked off the boundary of the land that he should have and placed him in the possession of it, and that he had remained in the possession of it from that time until he gave his testimony in 1910. That he put a little house on the land, worth probably one hundred dollars, enclosed a part of it by a fence, set out a small orchard, and cultivated it from year to year. There is also some evidence that in 1893 his father had a deed written, conveying to him this land in consideration of twenty-five dollars, but that after the deed was *344written and before it was acknowledged a question came np about tlie location of a road, and tbe deed was never signed or acknowledged by tbe grantor and of course never pnt to record.

Tbe evidence for the appellants tends to show that, after tbe divorce proceedings, Johnathan Smith and bis divorced wife, as well as Aaron Smith and his brother, Joseph P. Smith, continued to reside on this land until Johnathan Smith died about 1907. ' That Liviniah Smith was living and unmarried when the evidence in the case was taken. That Johnathan Smith proposed to sell the land in controversy to Wolford and Dotson and at the time they bought it, both he and his wife and Joseph E. Smith were living on the land, Aaron Smith at that time being in the State of Virginia. That they knew that Aaron Smith had lived on the land for a number of years in the same way that his brother, father and mother had, but,they had no information of any kind that his father had ever attempted to sell to or place him in the possession of any part of the land, or that he set up claim to be the owner of any part of it.

It will be kept in mind that at the time Aaron Smith claims that he purchased this land from his father, and was put in the possession of it by him that his father did not have any interest in the land except a remainder interest. That the life interest in the land was owned by his mother. This being so, his father could not have sold to him any present interest in the land or have placed him in the present possession of it, as his father had no present interest in or to the land at that time. As there is no pretense that Aaron Smith in 1902, or at any time, was holding the land adversely against his mother or that she placed him in possession of it, it is manifest that he could not have been holding it adversely to any person. It further appears from the record that after the divorce proceedings, Johnathan Smith and his divorced wife, as well as the children, continued to live on this land practically as they had done before, the old people living separately, but with their children, Aaron and Joseph F. Smith. What became of Julia Smith does not appear in the record. Aaron Smith was in the possession of a part of the land, and so was Joseph F. Smith in the possession of a part of it, and it is fair to assume that they were taking care of their parents.

There is no doubt that at the time the deed was made to Wolford and Dotson, the title to the land was in John-*345atkan and Liviniah Smith, ske kaving a life estate under tke divorce judgment, and ke a remainder interest. Owning tke land in tkis way, tkey of course kad tke rigkh to convey it, and tlaeir deed in 1902 passed to the grantees, Wolford and Dotson, a good title. If we should assume as counsel for Aaron Smitk ask us to do, tkat Aaron Smitk was in tke adverse possession of tke land from 1893, kis adverse kolding in 1902 kad only keen for nine years, and, wken tke deed was made ky tke legal title owners, Johnathan and Liviniak Smitk, to Wolford and Dotson in 1902, it terminated tke possession of Aaron Smith tkat ke claimed kad keen adverse from 1893. After 1902, if ke keld adversely against any person, it was necessarily against tke legal title owners, Wolford and Dotson, it is admitted tkat tkey knew ke lived on tke land after tkey purckased it, and tkey testified tkat tkey kad no objection to kis living tliere as tkey cared notking about tke use of tke land — only tke timber and mineral rights were valuable and tkey were not being disturbed by kirn — so tkey made no objection to kis remaining on the land after tkeir purchase. Aaron Smith’s whole case is grounded upon tke theory tkat ke kad been in tke possession of tke land a sufficient length of time to invest him with a promissory title tkat would defeat tke claim-of Wolford and Dotson. As we have frequently ruled, an adverse kolding.must continue for fifteen years, and, as Aaron Smitk did not hold adversely for tkis length of time, or for any time, kis claim of adverse possession is of no avail.

Nor can tke claim of Aaron Smitk tkat tke sale to Wolford and Dotson was ckampertous be maintained, as tke champerty statute, is only available wken there is an attempted sale of land tkat is in tke adverse possession of another.

Wherefore, tke judgment is reversed, with directions for proceedings in conformity with tkis opinion.