
    Sullivan v. Bland, et al.
    (Decided June 8, 1926.)
    Appeal from Hardin Circuit Court.
    1. Deeds — Deed, to be Effective, Must be Delivered to Grantee, and Accepted by Him with Intention of Passing Title. — Deed, to be effective and pass title, must be signed by grantor, acknowledged and delivered to grantee, and accepted by grantee, with intention of passing title, and mere intention to deliver without actual or symbolic delivery does not pass title.
    2. Deeds — That Deed is of Record is Prima Facie Evidence of its Delivery, but Burden May be Shifted to One Claiming Thereunder to Prove Actual Delivery by Showing that it was Not in Fact Deelivered. — Though fact that deed is of record is prima facie evidence of delivery, burden may be shifted to one claiming under deed to prove it was actually delivered, when it is shown that it was not in fact delivered.
    3. Deeds — Infant grantee is presumed to have accepted conveyance under deed advantageous to him.
    
      4. Trusts — Deed of Trust, Conveying Wife’s Property to Trustee for Joint Benefit of Husband and Wife, Title to Vest in Survivor in Fee, Held Not to Vest Title in Trustee in Absence of Delivery, and Land did Not Pass to Husband on Wife’s Death. — Where deed of trust whereby wife conveyed her property to trustee for joint benefit of husband and wife for their joint lives, title to vest in survivor in fee, was not delivered to trustee, who did not know thereof until long after wife’s death and recording thereof, held, that no title passed to trustee, and deed was ineffectual to vest title in husband through trustee.
    5. Life Estates — Life tenant must pay taxes, make repairs and do all things necessary to preservation of estate in remainder.
    6. Adverse Possession — Husband’s Occupancy of Deceased Wife’s Land, in Which he had One-third Life Interest, Held Not to put Actual Owners on Notice that he was Holding Adversely to Them; Presumption Being that he Occupied According to ¡His Title. — Husband’s occupancy of deceased wife’s land, in one-third of which he had life interest, held not to put actual owners on notice that he was holding adversely to them; presumption being that he held according to his title and right, and not contrary thereto.
    7. Tenancy in Common — One Joint Tenant Cannot Acquire Whole Title by Adverse Possession, Unless he Brings Knowledge to Co-tenant of his Exclusive Claim of Title, or Does Acts Putting Co-tenant on Notice. — One joint tenant cannot claim adversely to his cotenant and thus acquire exclusive title, unless he brings knowledge to cotenant of his exclusive claim of title, or does such acts as are reasonably calculated to put cotenant on notice that occupying tenant is holding adversely, and claiming title to whole tract. • ■ ■
    
      8. Limitation of Actions — Statutes of limitation did not run against married women, whose disability was never removed before action was brought.
    
      F. W. WHEELER for appellant.
    •T. E. WISE for appelleees.
   Opinion op the Court by

Judge Sampson

Affirming.

When sued -by appellees in ejectment to recover a tract of 32 acres of land in Hardin county and $500.00 damages for the wrongful withholding’ thereof, rents, etc., appellant, Sullivan, answered and denied the claim of appellees to the land, and affimatively pleaded that on June 1, 1892, he and his then wife, -Margaret Sullivan, who was the owner in fee simple of the tract of land described in the petition, entered into an agreement whereby the husband was to make certain improvements on her land and that the survivor should have both the land and the improvements in fee, and with this object in view executed a deed to Josiah Phillips, trustee, for the joint use and benefit of Margaret and Robert M. Sullivan during their joint lives, with the provision ,‘that if said Margaret Sulhvan shall survive Robert M. Sullivan, then to belong solely to her, her heirs and assigns forever, in fee simple; if said Robert M. Sullivan shall survive said Margaret Sullivan, then to belong’ to-him, his heirs and assigns forever, in fee simple, but he in that event to pay the oldest daughter of Belle T. Kinkead $50.00, and to the oldest daughter of Sarah E. Bland, $50.00;” and appellant, Robert M. Sullivan, relied upon the deed made to Phillips, trustee, and the. further fact that Margaret Sullivan, his wife, had died in 1895, immediately following the execution of the deed, as vesting in him absolute fee simple title to- the property, it being averred that immediately after the death of his wife he paid to the statutory guardian of the oldest daughter of appellee, Bland, and to the statutory guardian of the oldest daughter of appellee, Kinkead, $50.00 each, as required and specified in the deed to be paid to them, taking receipts- therefor. He also pleaded the actual, open,' notorious,- adverse possession of the tract of land f-or more than the statutory period, in fact from the death of his wife in 1895, as a bar to any cause of action which appellees may have had against him originally for the lands. Several' other defenses were presented by other paragraphs of the answer. A reply put in issue the material averments of the answer and affirmatively pleaded that appellee, Sarah E., Bland, and Belle Kinkead “are now and were at the time of the death of said Margaret Sullivan, the sisters , and only heirs at law of said Margaret Sullivan, and acquired title to the land set out and described in the petition by inheritance from her,” that they were at the time of the death of their sister, Margaret Sullivan, are now and have been continuously from the time of her death up to the time of the filing of the answer, married women, living with their husbands; that-the statute of limitations did not for that reason run against them and that appellant did not and could not acquire title by adverse possession against them.

The parties filed a stipulation of fact showing that appellant, Robert M. Sullivan, and Margaret Sullivan, now deceased, were lawfully married in Hardin county on September 19th, 1888; that she became the owner of the fee simple title to the land described in the petition on January 31,1893; that they had no children, and that Margaret Sullivan died on the 11th day of August, 1895; that appellees were sisters and only heirs at law of Margaret Sullivan; that the appellant paid the guardians (being their respective fathers) of the daughters of each of appellees, the $50.00 mentioned in the deed; that appellees were married women at'the time of the death of Margaret Sullivan, and at all times since, living and residing with their husbands; that Robert Sullivan “is not now and has not been since 1919, living on the lands described in the petition but is now the owner of another tract of land situated near the one described in the petition but not adjoining it, on which he resides, and that it is reasonably worth more than $1,000.00; that' appellant had been in the exclusive possession of the land described in the petition since the death of his wife in August,-1895. ’ ’ Quite a lot of evidence was - taken in depositions and made a part of the record: The trustee, Josiah Phillips, named in the deed, gave- his deposition, stating, in substance, that he is past eighty-years of age and lives at Sonora,' Kentucky, and knew Margaret Sullivan in her lifetime and was also acquainted with her sisters, appellees,' and with appellant-; that he has been acquainted with the land' in . controversy" ever since Margaret Sullivan acquired title to it; that he did not know of the execution of the trust deed to him by appellant. and Margaret Sullivan, .and the. deed, was not delivered or .offered to be delivered, to Mm, or its existence made known .to Mm until long after tbe death of Margaret Sullivan and long after tbe deed bad been placed to record; that be did not accept tbe deed or trust or undertake to execute tbe trust and bad never bad anything to do with tbe deed, or with tbe estate which was attempted to be passed by tbe deed; that nobody mentioned tbe deed or tbe trust to him, or asked bis permission to make the deed to him as trustee, and be did not agree to accept tbe deed and did not do so. . There is no* evidence in tbe record indicating that Josiab Phillips knew of tbe deed or its execution until long' after the death of Mrs. Sullivan, or any evidence tending to show that be knew anything about tbe trust arrangement entered into between Mr. and Mrs. Sullivan.

It is well settled that a deed to be effective and pass title must be signed by tbe grantor, acknowledged and delivered to tbe grantee and accepted by him. In Kirby v. Hulette, 174 Ky. 257, it is said that the delivery of a deed is tbe act which divests tbe grantor of title in tbe property which is tbe subject of tbe deed, and tbe title does not pass until tbe deed is delivered. Even a delivery of a deed is not effectual unless the delivery was made with intention on tbe part of the grantor to convey tbe title, and accepted by tbe grantee for tbe purpose and with tbe intention.on bis part of taking and bolding title to tbe property described in tbe deed. No title can or will pass under a deed until it is delivered, either actually or constructively. In Justice v. Peters, 168 Ky. 583, it was said that a deed to be effective against a subsequent purchaser for valuable consideration, must have been delivered to tbe grantee, or to some one for him, and accepted by tbe grantee. An intention to deliver the deed without actual or some symbolical delivery, does not pass title. ' While tbe fact that a deed is of record is prima facie evidence of its delivery, tbe burden may be shifted to tbe one claiming under tbe deed to prove that it was actually delivered, when it is shown that tbe deed was not in fact delivered, as in this case. So also is tbe acceptance of a deed a necessary part of the delivery, and title does not pass to a grantee sm juris, until he accepts tbe 'conveyance, even though tbe deed is delivered to him. Sullivan v. Sullivan, 179 Ky. 686.

In transactions between adults it is said in Cronin v. Cronin, 169 Ky. 767, that tbe delivery and acceptance are both essential to the validity of a deed. Blackstone, Lewis edition, book 2, page 766; Corpus Juris, vol. 18, 157; Dunbar v. Meadows, 165 Ky. 275, 176 S. W. 1167; Ball v. Sandlin, 176 Ky. 537, 195 S. W. 1089; Cates, &c. v. Cates, 152 Ky. 47, 153 S. W. 10; 30 C. J. 694-5. But where the deed is to the advantage of an infant grantee, a presumption arises that he accepted the conveyance.

In the absence of a delivery by the grantors in the deed under consideration to Josiah Phillips, trustee and grantee in the deed, no title passed from Margaret Sullivan and her husband, Robert M. Sullivan, to the trustee. The trustee having no knowledge or information of the making of the deed or his selection as trustee, was not afforded an' opportunity to either accept or reject the trust. 30 C. J. 694, et seq. The evidence clearly shows that he did not accept it and rather indicates that he would not have accepted it had he known of the execution of the deed and his selection- as trustee. There was neither delivery nor acceptance, -hence no passing cf the title. If no title passed from Margaret Sullivan to Phillips as trustee for the use and benefit of the survivor, Robert M. Sullivan, then the deed was ineffectual to vest appellant Sullivan with title, he claiming through and under the deed made, as he says, for his use and benefit.

The lower court adjudged Mrs. Bland and Mrs. Kinkead “the owners- in fee simple of the land set out .and described in the petition, subject to a life estate of the defendant, Robert M. Sullivan, in an undivided one-third of same, ’ ’ and further held that the rents and profits derived from the undivided two-thirds interest in the land which appellant, Robert M. Sullivan, occupied and used, but which he had no right to, was and is equal in value to the improvements placed on the land and taxes paid by appellant, at least to the extent that the improvements increased the vendible value of the land and set the one off against the other. The life tenant is required to pay the taxes, make repairs and do all things else necessary to the preservation of the estate in remainder.

So, it was appellant’s duty to pay -the taxes upon -one-third of the land in controversy, he being the life tenant to that extent. His use and occupancy of the land, however, was worth something, and the trial court after hearing the facts decided the rental value of the two-thirds of the land to which he was not entitled was equal to the taxes paid and improvements put upon the land during his occupancy. We are not disposed, therefore, to disturb this finding and conclusion of the trial court because it appears to accord with the facts, and is just and fair.

Neither is appellant’s claim of adverse possession maintainable. As a life tenant of one-third of the land he was entitled to occupy the premises, his one-third being undivided. He had a right to occupy and use the lands, at least to the extent of one-third thereof. His occupancy, therefore, was the natural result of his life tenure and was not calculated to put the actual owners of the land upon notice that he was; holding or claiming adversely to them, the presumption being that he was holding according to his title and right and not contrary thereto. May v. C. & O. R. R. Co., 184 Ky. 493. One joint tenant cannot claim adversely to his co-owner and thus acquire title unless he brings knowledge to them of his exclusive claim of title and with the purpose to oust them or do such acts as are reasonably calculated under the facts and circumstances to put the outstanding cotenants upon notice that the occupying tenant is holding adversely to him and claiming title to the whole tract. Miller, et al. v. Powers, et al., 184 Ky. 417. Moreover, appellees were both married in 1895 and continued so until entry of the judgment. Their disability was never removed. The statutes of limitation did not, therefore, run against them. Miller v. Powers, supra; Peters v. Noble, 196 Ky. 123.

For the reasons indicated the judgment is affirmed.  