191 Ky. 706 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming.
The appellant, as the plaintiff below, by Ms petition in equity against the appellee, as. defendant, averred that he was the owner with a legal title thereto, and in the actual possession of a tract of land, which was described, in Magoffin county, and that he purchased the land from one Lewis Hoskins and wife, and dame into its possession and ownership through a deed made by Hoskins and wife. He further averred that the defendant was setting up claim to ownership of the oil» and gases in the land, and thereby casting a cloud upon his title to his injury and damage. He filed with his petition a deed from Le'wis Hoskins anid wife to the Northern Coal & Coke Co., dated September 11,1903, which he averred was the basis of the defendant’s claim of title. His prayer was for a judgment quieting his title to the land, and requir
The defendant interposed a general demurrer to the petition which 'was sustained, and the plaintiff electing to stand upon his petition, and declining to amend it, the court adjudged that it be dismissed, and from the judgment the plaintiff has appealed, and the only question before this qonrt is whether the petition stated facts sufficient to constitute a cause of action in behalf of the plaintiff.
At the outset, it is proper to say, that upon a demurrer to the .sufficiency of the petition, the court .is not authorized t,o look to or to consider anything, except the allegations of the petition, and the exhibits filed with and made a part of it. In the instant case there were exhibits on file as evidence, and otherwise, which were not any part of the petition, and cannot be considered upon the question presented, although it seems that the trial court took into consideration these exhibits. If the plaintiff had been content to have averred that he was the o'wner of the land, and in its actual possession, and that the defendant ’was wrongfully claiming to be the owner of the oil and gases therein which were a portion of the land, and to have designated the nature .of the defendant’s claim, as nearly as it was practical to do without describing its chain of title, but so as to show that the claim of ownership by defendant was hostile and adverse to his title, a ¡sufficient cause of action would have been stated under section 11, Ky. Stats. Kincaid v. McGowan, 88 Ky. 91; Campbell v. Disney, 93 Ky. 41; Whipple v. Earich, 93 Ky. 121; Magowan v. Branham, 95 Ky. 581; Williams v. Lowe, 175 Ky. 369; Brown v. Ward, 32 K. L. R. 261; Henderson v. Clark, 163 Ky. 192; Hall v. Pratt, 142 Ky. 561; Cumberland Co. v. Kelley, 156 Ky. 397; Perry v. Eagle Coal Co., 171 Ky. 824. The plaintiff, however, went further and averred how he became the o'wner of the land, which he did by purchasing it from Lewis Hoskins and wife, and accepting a deed of conveyance frpm them for the land, which he had caused to be recorded. He thereby averred that his source of title emanated from the deed made to him by Hoskins and
The judgment is therefore affirmed.