
    CASE 66. — ACTION BY FRONIE PHILLIPS AND OTHERS AGANIST FRANK HUNT FOR PARTITION OF LAND.
    January 29.
    Hunt v. Phillips’ &c.
    Appeal from Pike Circuit Court.
    A. J. Kirk, Circuit Judge.
    Judgment for plaintiffs. Defendant appeals.
    Affirmed.
    Appeal and Error — Reversal—Conelusiveness of Judgment.— Where, in partition, plaintiffs’ petition presented every essential fact on which defendant could rest his claim to the land as tenant by the curtesy, and, on a demurrer thereto being overruled, defendant refused to plead further and elected, to stand on the demurrer, whereupon judgment was entered for plaintiffs, defendant could not on return of the case after affirmance on appeal, set up by answer any other ground of defense; the judgment on appeal being res adjudicate.
    J. S. CLINE for appellant.
    AUTHORITIES CITED.
    Cyc. vol. 3, p. 399; Smith w. Bogenschultz, Í4 Ky. Law Rep. 305; Ky. Opinions, vol. 2, p. 240.)
    C. M. WHlTr and' P. B. -STRATTON for appellees.
    AUTHORITIES’ CITE®
    Cairs v. Union Cent. Life Ins. Co., 93 S. W. 622; Mead, &c., v. Mead, 112 S. W. 862; Davis v. MoOarkle, 14 Bush 746; Hard-wick v. Young, 110 Ky. 504.
   Opinion op the Court by

Chiep Justice Settle

Affirming.

This action was instituted in the Pike county court by the appellees., Fronid Phillips and Annie Justice, children of the appellant, Frank Hunt, and his deceased wife, Mary Hunt, to obtain a partition of a tract of land lying on Wolf creek, in Pike county. The. land had been conveyed by deed from James Cox and wife to W. H. Fields and Jane Fields, his wife, jointly for life, with remainder to their, daughter, Mary Hunt, wife of the? appellant, Frank Hunt, and her heirs. Mary Hunt died after the execution of the above-mentioned deed, and her death was followed by that of her father, W. H. Fields. Upon the death of the latter^ his life estate in and to an undivided half, of the land, of course, terminated, and such half descended under the statute to the children of the deceased remainderman, Mary Hunt. After the death of W. H. Fields, his widow, Jane Fields, the other joint life tenant, by a proper deed conveyed her life estate in an undivided half of the land to the children of her deceased daughter, Mary Hunt. Thus it will be seen that by the death of their mother and grandfather and the deed from their grandmother, Jane Fields, the children of Mary Hunt acquired an absolute or fee-simple title to the entire tract of land. The foregoing facts were duly set forth by the'petition in the suit for partition brought by the appellees Fronie Phillips and Annie Justice in the county court, and the appellant, Frank Hunt, Catherine Hunt and R»sa Hunt, brother and sisters of appellees and joint owners with them of the land to be divided, were made defendants. There was yet another child of appellant and Ms deceased wife whose one-sixth interest in the land appellant had purchased, and this interest the petition conceded he was entitled to. The appellant, Frank Hunt, asserting claim to a life estate as tenant by the curtesy in the whole of the land, filed in the county court a demurrer to the petition, and obtained a transfer of the case to the Pike circuit court. After the case was transferred to the circuit court, appellees filed an amended petition, in which they set out the grounds upon which appellant based his claim of curtesy and appellees’ grounds of resistance thereto. Upon a consideration by the circuit court of the questions, of law raised by the demurrer to the petition as amended, the demurrer was overruled. Appellant excepted to the ruling of the court, refused to plead' further, and elected to stand upon his demurrer. The court thereupon entered judgment restricting appellant’s interest in the land to a sixth and directing partition of the land among the parties entitled' thereto as prayed in the petition. To this judgment appellant also excepted, and from it, as well as the order overruling Ms demurrer to the petition, he prosecuted an appeal to this court wMch resulted in an affirmance of the judgment of the circuit court. Hunt v. Phillips, etc., 105 S. W. 445, 32 Ky. Law Rep. 257. Upon the return of the case to the circuit court, and following the filing and entering therein of the mandate of this' court, appellant tendered and offered to file in that court an answer and counter-claim, in wMch he again set up claim as tenant by the curtesy to the whole of the land owned by Ms children, and the further claim that he was entitled to it, because of his alleged actual and continuous possession thereof, adversely to his children and all others, for as much as 15 years previous-to the institution of the action for partition; the answer concluding with a plea of the statute of limitations, and a prayer that he he adjudged the owner of the land. The circuit court refused to allow the answer and 'counter-claim to be filed, and entered a judgment to that effect, of which appellant complains, and in the effort to reverse which he prosecutes this, the second, appeal.

Manifestly the rejection of the answer and counterclaim by the circuit, court was proper. Every claim of right to the land and ground of defense to appellees’ action it presented was raised by and decided upon appellant’s demurrer to the petition, except the plea of the statute of limitations, which it is apparent was an afterthought and without merit. The petition as amended presented the necessary title papers and every essential fact upon which appellant rests, or can rest, his claim to the land as tenant by the curtesy, and these facts were admitted by the demurrer. The questions of law and fact involved were, therefore, clearly indicated and the issue so sharply defined that both the circuit court and this court could readily grasp and decide them with due regard tó the rights of all the parties. All this is shown by the record of the former appeal, and which is before us, and more especially by the following excerpt from the opinion of this court then delivered: “Here, all the facts being stated in the petition, the demurrer raised the question as fully as an answer could have done. A demurrer raises an issue of law. A defense to an action may be presented by demurrer. Here, by the demurrer, the right claimed in the petition was contested. * * * Under the deed (from Cox and wife) W. H. Fields and Jane Fields took the land for life with remainder to Mary Hunt. "When she died, the remainder vested in her descended to her children. After W. H. Fields died and after Jane Fields conveyed her interest in the land to the children, they owned the fee. Mary Hunt at no time was seised of the land, as she died before the termination of the life estate; and her husband was not therefore entitled to curtesy in it. In 2 Blaekstone, 127, the rule is thus stated: “The seisin of the wife must be an actual seisin, or possession of his lands, not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be a tenant by the curtesy of a remainder or reversion.’ # * *”

If appellant had any ground of defense or resistance to a partition of the land other than that raised by the demurrer, he should simply have excepted to the ruling of the court upon the demurrer, and then filed an answer setting up such additional ground of defense or avoidance, including a plea of the statute of limitations. And if, after thus proceeding, judgment had gone against him in the lower court, upon an- appeal of the case he could have obtained a review by this court, not only of the judgment, but of all the rulings of the lower court to which exceptions were reserved by him. But, instead of taking this course, he staked all upon his demurrer to the petition, which properly raised for adjudication Ms claim of right to the land as tenant by the curtesy, but nothing more; and when, after excepting to the ruling of the court upon his demurrer, he appealed therefrom' and from the judgment wMoh followed, the only question presented to this court for review was as to the action of the lower court in overruling the demurrer. Having elected to stand on the demurrer, appellant must accept this court’s affirmance of the act of the lower court in overruling it, and is concluded by it. There - fore be was estopped upon the return of thie case to the lower court to set up by answer any other ground of defense, however available or meritorious it might have been, if urged in the court below previous to the. first appeal.

The judgment of this court on the first appeal was res judicata. Appellant could not present by piecemeal his several grounds of defense to appellees’ action, or experiment upon the courts as attempted in this case.

Wherefore the judgment is affirmed.  