Thompson v. Rutherford , 2 Posey 652 ( 1879 )

Opinion.— It will be noticed that tbve decree under consideration by its terms purports to pass the title of the five hundred acres of land from, these heirs and legatees to Wm. R. Redding, and that the decree wras fully .warranted by the above-quoted section of the statute. Appellants do not pretend that the evidence of possession by appellee, of this five hundred acres-of land, was not ample to sustain the plea of three years’ limitation. The .record shows that the limitation had interposed an effectual bar in behalf of the appellee prior to the 1st day of January, 1861. In deraigning title to the other tract of four hundred acres of the Redding survey, appellee shows title in himself to a" five-sixths undivided interest in the same; the other one-sixth appears to be in one of the legatees.

To this chain of title it is objected that the evidence disclose the fact that the land was the common property of Eobt. L. Eedding and his wife, and that therefore he could only vest title in one-half of the land in his other legatees. This proposition is not maintainable. By his will special bequests were made to the wife, and the remainder of the property, including that in controversy, was bequeathed to their children. From the record it may be presumed that Mrs. Eedding had elected to and did take under the will; for it does not appear that she ever interposed any objection to it, and the appellants are not in a position to do so for her at this late date.

Clearly appellee had held and occupied this land for the legatees (who claimed the same under a regular chain of title) for more than three years prior to the 1st of January, 1861; and that he had continued to hold and occupy the same since his purchase from the five legatees. This vested in him the superior title to the five-sixths undivided interest by limitation, and established a paramount outstanding title in his co-tenant, the other legatee, for the remaining one-sixth interest. In any event the appellant could not recover the land, for the reasons heretofore given; therefore the other errors assigned could not affect the result, and will not be considered.

Affirmed.