57 S.W.2d 58 | Ky. Ct. App. | 1933
Affirming.
This action of ejectment, brought by Carrie Fults Duncan and others against W.E. Alexander, resulted in a verdict and judgment for plaintiffs. Defendant appeals.
Only a small strip of land is involved. Both appellant and appellees, who are adjoining landowners, derived title from Wesley Fults, but there is no overlapping of boundaries. The case turns on the location of the dividing line between the tracts owned by the parties, and on the further questions of adverse possession and champerty asserted by appellant. We deem it unnecessary to review at length the evidence bearing on these issues. In our opinion it was sufficient not only to take the case to the jury, but to sustain the verdict.
The language of the instruction on adverse possession is "for fifteen years or more before the 21st day of July 1930." Therefore, the instruction is not subject to the criticism that it confined the adverse possession to a period of fifteen years next preceding the day on which the action was brought. Not only so, but the instructions, considered as a whole, are substantially correct, and have been often approved by this court.
The court did not err in refusing offered instructions submitting the question whether certain deeds were champertous. The deeds referred to were made to Carrie Fults Duncan by others who were joint owners with her, and no rule of law is better settled than *424
that where one cotenant conveys his interest in land to another cotenant, the deed is not champertous; the reason for the rule being that the sale does not introduce any stranger to the title, but is to one who already has the right to sue and to base his action on the same title. Russell v. Doyle,
There is no merit in the contention that the surveyor's report, which was not excepted to, was conclusive of the rights of the parties. At most, it was only prima facie correct and did not preclude other evidence on the questions involved. Ball v. Loughridge, 100 S.W. 275, 30 Ky. Law Rep. 1123.
Appellant's main contention is that he was entitled to a peremptory instruction. The basis of the claim is that, in the absence of a pleading that the parties claimed through a common source, it was incumbent on appellees, plaintiffs below, to prove title either of record from the commonwealth or by adverse possession, which they failed to do. In short, appellees' position is that a plaintiff in ejectment cannot prove title to a common source without a pleading to that effect. Crawford v. Crawford,
The further point is made that the court improperly reprimanded appellant's counsel for misconduct in the trial of other cases. It may be that the court went too far in the reprimand, McGill v. Commonwealth,
Judgment affirmed. *426