187 Ky. 596 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
Old man Martin Bailey acquired a tract of about 100 acres of land on Billie’s fork of Miller’s creek in Lee county, Kentucky, about tlie year 1858, and shortly thereafter moved on the place and made his home there for many years. He died in about 1873 but at the time of his death he had moved over off the land and had a job at hauling timber. He was buried on the farm in question and very soon thereafter his widow and family moved back to the old home place and continued to live there for several years. About the same time a son, Frank Bailey, with the consent of his mother, built a house on the same tract of land and made his home there. After all the children became adults and established homes for themselves in other parts of the country, the widow went to visit some of them intending at the time
If the possession in its origin is amicable it will not become adverse so as to set the statute of limitations in motion, unless the prpperty is in fact held adversely and in such manner as to apprise a person of ordinary prudence that the holding is adverse. Padgett v. Decker, 145 Ky. 227; Cryer v. McGuire, 148 Ky. 100; McGurley v. Venters, 104 S. W. 365; Collins v. Blair, 178 Ky. 120; C. & O. R. R. v. Rosskamp, 179 Ky. 175; Big Blain Oil & Gas Co. v. Yates, 182 Ky. 50; Snyder v. Vinson, et al., 167 Ky. 332.
It is earnestly insisted by appellants that the trial court erred in admitting as evidence a letter dated Greely, Kentucky, November, 1906, and signed “Richard Bailey,” because they say that Richard Bailey positively testifies that he did not write the letter, and the letter is not otherwise 'sufficiently identified and proven as to entitle it to go to the jury. A second reason given is that the letter was not competent even if written by Bailey, because in November, 1906, Richard Bailey owned and claimed no interest or share in the land and was, therefore, not in position to estop his father then living and afterwards his heirs from asserting title to the land by adverse possession by the letter in question. The letter erty. ”
“November, 1906. Greely, Ky., Dear Grandmow: I thought I would write you a letter as I want to hear from you. This leaves us all well at present. Hoping this letter will find you all well. - My father is no better he is about like he has been quite awhile. I want you to see Will Bailey and Aunt Linda and Bud Bailey what they will take for their interest in the old home farm where my father lives and also Aunt Betty, Aunt Nancy to, if you can. I want it for may father and mother do live on. I have a part of the money and mother has the rest, so write me as soon as you can find out about the matter and let me hear from you, as I want to know how you all is getting along. You all know what kind of land it is, and you know it has been worn out years ago, it will only make the old folks a home so long as they live, you can afford to sell it to me cheap as you know just how it is, so write me at the earliest opportunity and as soon as
Richard Bailey repeatedly asserts that he did not write the letter. On the witness stand he was asked to write certain words and parts of sentences taken from the letter, and he did so in the presence of the jury. These specimens were allowed to go to the jury along with the letter in question, the court admonishing the 'jury that the specimens of • handwriting furnished by the witness could be considered only for the purpose of determining whether he wrote the letter offered in evidence; and further that in case the jury should determine that Bailey wrote the letter it should then determine what effect, if any, it would give to the letter as evidence. At the time of the bringing of the suit Richard Bailey was one of the claimants of the land, hé being a son of Prank Bailey, the deceased, and a grandson of Martin Bailey, who originally took the land in 1858. He gave testimony to the effect that his father Prank Bailey and family had lived upon and claimed the land in question adversely to plaintiffs and all the world for more than fifteen years next before the commencement of the action. This letter of November, 1906, strongly contradicts the statement of the witness made at the trial, and was competent as evidence for that purpose, if for no .other. If Richard Bailey wrote the letter in question it is a strong circumstance which it was the province of the jury to consider in determining the claim of adverse possession.
Appellants also complain of the admission of two other letters, one dated February 20th, and the other February 28th, 1918, written from Radical, Ky., and signed by Ann Bailey. They appear in the record at pages 222 and 223, and read as follows:
“Radical, Ky., Feb. 28th, 1918.
“Mr. M. B. Bailey:
“I will write you a few lines, you come back and we will fix up the deed to the old place, I have found the old bond to it so I will write a few lines to Sue. Hello, Sue, how are you, all right I hope. Why didn’t you come up with Bud. I would love to see you, you must come to see me, so I will close.for this time, from your sister.
“Ann Bailey.
“So goodbye for this time.”
“Mrs. Malinda See.
“Dear sister: I will write you a few lines to let you know I am well as common and hope when these few lines reaches you that they will find you the same. Malinda, Bud has been here to see us about the old place, he wants us all to divide the old place or lease it. You tell Billie for you and him to come and we will agree on it, and come at once. I am going to write to Bud but if you can get him word, you do so at once, and the quicker the better, before something turns up. They are lawing in this country, come at once and we will have a deed made for it. A deed wont be no 'trouble. I have got everything all ready, so I will close for this time, hoping to hear from you soon, so goodbye, from Ann Bailey.”
These letters were written only a short time before the commencement of this litigation and were introduced to show that the widow of Frank Bailey, who lived on the lands with him and who continues to make her home there until this day, acknowledged the right of the other heirs to some share in the property. These letters were also competent as evidence to contradict the witness, Ann Bailey, and were the basis of a plea in estoppel. Aside from these letters, however, there was sufficient evidence to support the verdict of the jury.
As appellants prepared and offered the instructions given by the court to the jury, it will not be necessary for this court to examine the instructions, but we may say that the court properly overruled the motion of appellants for a peremptory instruction at the conclusion of the evidence for the plaintiffs..
Perceiving no error to the prejudice of appellants, the judgment is affirmed.
Judgment affirmed.