176 S.W.2d 277 | Ky. Ct. App. | 1943
Affirming in part and reversing in part.
A full account of the origin and major issues of this litigation may be found in our opinion reversing a judgment in favor of the present appellant, E.H. Anglin. Pennington v. Anglin et al.,
And with regard to the paper title claimed to have been accquired through the alleged deed from G.M. Logan: "While the Samuel Logan patent and the deed from G.M. are exhibited, there is a total failure of proof that G.M., whose father died in 1873, had ever taken or claimed possession of the land. In fact his only claim was that the disputed tract was perhaps one patented by his father in 1819." *144
The appellant, Anglin, claims that he was at least entitled to an award equivalent to the enhancement in value of the land resulting from the improvements which he erected, and that the court's instruction submitting that question was erroneous in one or more particulars. But his entry on the land in 1934 was without color of title; he knew that the Big Hill Coal Company, one of appellee's predecessors in title, had a record title extending back to 1902; and, while he claims not to have erected the improvements for which he seeks reimbursement, until after he had obtained the deed from Samuel Logan's alleged son on February 23, 1938, nevertheless, he had at that time at least constructive knowledge of appellee's recorded deed from the record title holder dated February 17, 1937, to say nothing of appellee's tax deed from the sheriff dated and recorded in 1935. Only a bona fide purchaser, that is, one who actually believes, and has no reason to believe to the contrary, that his title is good, is entitled to recover the enhancement in value resulting from the improvements which he erects; and by no stretch of the imagination can appellant be brought within that definition.
However, appellants' contention that the court erred in its instruction relative to the amounts which might be awarded appellee for rent and for timber cut and removed by appellant, is well founded. The vice in the instruction is that it permitted a recovery for appellants' use and occupation of the land and marketing of the timber prior to the time appellee acquired title; and we cannot say that the instruction was not prejudicial.
Accordingly, so much of the judgment as awards appellee the land is affirmed, but so much of the judgment as awards appellee $700 with interest from its date is reversed for further proceedings consistent with this opinion.