
    Ferenbaugh et al. v. Ferenbaugh.
    
      Deeds — Release of expectancy of inheritance invalid, when-Title of heirs of grantee — Adverse possession against releasor — Release not available to cotenants, when.
    
    1. A clause In a deed, releasing a son’s expectancy of inheritance from his mother, is invalid, and does not operate to confer title, by estoppel or otherwise, upon the other heirs of the mother. (Needles, Nxr., v. Needles, 7 Ohio St., 432, followed.)
    2; Cotenants claiming to hold title by adverse possession against such son cotenant cannot rely upon such release made to the mother, to prove title by adverse possession. The title acquired by the releasor becomes a new acquisition of property at the death of the mother, and the conduct of the co-tenants, in order to establish adverse possession, should be confined to proof of acts done or declarations made after the releasor’s inheritance was acquired from the mother.
    (No. 17077
    Decided April 25, 1922.)
    Error to the Court of Appeals of Knox county.
    This is an action in partition. For disposition of the case here the salient facts may be briefly stated. In 1875, one Fidele Ferenbaugh died intestate, seized of a farm consisting of 153 acres, leaving a widow, Eliza, and five children, Joseph, Leo, Mary, Frank and Edmund. Edmund died without issue, and in 1878 Leo quitclaimed his undivided one-fifth interest to his mother. The year preceding, 1877, the son, Joseph, in consideration of $2,100, executed a deed of quitclaim in the premises, to his mother, which contained the following clause or covenant: “Also all right and title and heirship to and in the personal and real estate of said Eliza Ferenbaugh which may be subject to distribution at her decease, reserving, however, the right to inherit from the heirs of said Eliza Ferenbaugh.”
    The controversy in this case arose chiefly from the employment of the above language in Joseph’s deed of quitclaim. In 1895 Eliza, the mother of Joseph, died intestate. After the death of the father, the daughter Mary continued to reside on the farm until the bringing of this action, and Frank, a son, continued to reside on the farm, controlling and managing it until he was adjudged insane, about 1888, after which Mary, the daughter, assumed control in the interest of herself and Frank. Frank died in 1916. During this time Joseph lived about two miles from the farm, while Mary and Frank, especially the former, continued its control and management, paying taxes, making improvements, and receiving money for products sold therefrom.
    Joseph died in 1913, leaving George H. Ferenbaugh, the defendant in error as his sole heir at law, who was the plaintiff in this partition suit, which was filed on February 21, 1920. In March, 1920, an administrator of the estate of Frank was appointed, who, on July 19, 1920, filed a petition as administrator to sell his alleged undivided one-half of the farm for the payment of debts and cost of administration. The judgments of both courts below were in favor of the defendant in error, both holding in effect that George H. Ferenbaugh’s title in his grandmother’s inheritance was not cut off by the clause in his father’s quitclaim deed, and that the evidence did not establish title by adverse possession in the plaintiffs in error. Error is now prosecuted to this court.
    
      Mr. Burch B. Ferenbaugh and Mr. Lot C. Stillwell, for plaintiffs in error.
    
      
      Mr. Frank O. Levering, for defendant in error.
   Jones, J.

It seems to be practically conceded by counsel for plaintiffs in error that no title could be acquired by them under the quitclaim deed of Joseph, whereby he sought to foreclose his right of inheritance from his mother. Such contention could not be sustained, in view of the established law of this state that the expectancy of an heir’s succession to his ancestor’s estate cannot be the subject-matter of release, and that such a covenant will not operate to defeat, by way of estoppel, title afterwards acquired from his mother by inheritance. Needles, Exr., v. Needles, 7 Ohio St., 432, and Hart v. Gregg, 32 Ohio St., 502.

The law of descent and distribution controls the descent of property, and as stated in the Needles case, supra, one cannot by will defeat that law by an executory contract made with his children for the purpose of controlling distribution after his death. However, the chief contention in this case is that while Joseph’s cotenants cannot predicate their privity of title upon the clause in the quitclaim deed, they may invoke such clause in aid of their claim of adverse possession. In support of that view the case of Russell v. Tennant, 63 W. Va., 623, is cited.

Had this deed been made by Joseph to his cotenants for a valuable consideration, that case would be apropos, as holding that while the void provision in the deed might not.confer title upon his cotenants it could be admitted as evidence between the parties to the transaction as showing that the adverse claimants and the grantor in the deed might recognize such deed and its invalid clause as a disseisen of the property, provided, of course, that the possession was taken and maintained for a period of twenty-one years in reliance upon the deed. In such a case, after the payment of consideration, the court could well hold that the possession of the adverse claimants was hostile, and that such clause constituted a disclaimer made by the tenant out of possession, which was tantamount to ouster. But such is not the case here. No consideration was paid by the cotenants in possession. There was no privity of contract between them and the grantor in the deed. In no event could the cotenants assert a legal right under the covenant, for the mother could circumvent a statutory distribution either by her deed or will. When the mother died in 1895, under the decision of Needles v. Needles, supra, an absolute estate vested in Joseph by inheritance from his mother. If the cotenant was disseized by the claimants in possession, such must be proven from their conduct after Joseph acquired his new acquisition. Such proof was not forthcoming. Mary testified that she never made claim to anybody that she and Frank owned the place, and never talked to Joseph about it in his lifetime. The record does not show that either Joseph or George disclaimed title after the mother’s death, but the law will presume that the possession of some cotenants is the possession of all. Mere silence upon the part of the tenants out of possession does not constitute a disclaimer. The burden of proof sustaining the claim of adverse possession, including its hostile character, was upon the plaintiffs in error. The proof must be such as to show an overt act of unequivocal character indicating an assertion of ownership to the exclusion of the cotenants out of possession. Youngs v. Heffner, 36 Ohio St., 233; Hogg v. Beerman, 41 Ohio St., 81, and 7 Ruling Case Law, 848, Section 42.

There is an entire absence of proof in this regard, showing any adverse possession by the cotenants in possession. They relied solely on the covenant referred to in the deed to Eliza, overlooking the fact that by reason of the invalidity of that covenant Joseph acquired an entirely different interest from that which he conveyed.

The fact that the administrator of Frank brought a suit in the probate court to sell the decedent’s interest in the farm for the payment of debts furnishes no reason for holding the partition suit, begun five months before, in abeyance.

The judgment of the lower courts will be affirmed.

Judgment affirmed.

Marshall, C. J., Johnson and Wanamaker, JJ., concur.

Robinson, J., took no part in the consideration or decision of the case.  