35 Ky. 341 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
This Court is not disposed to scrutinize very strictly, the grounds on which a new trial has been granted, when it appears that, in consequence of a technical and unexpected objection to the authentication of an important title paper, the merits were not decided by the first
First. It is assigned for error that the Court refused to exclude from the jury the title papers offered by the plaintiff in the action, now the appellee. But the objection to the patent, because the copy produced was without a seal, was properly overruled, as decided at the present term, in the case of Sneed vs. Ward &c. [Ante, 188.] The deed from Joshua Fry, heir at law of the patentee, John Fry, to Charles Vancouver, having been duly proved and admitted to record in the office of the General Court of Virginia, according to the laws then in force, before Kentucky became a separate Commonwealth, and these facts being properly certified, it is not only sufficiently authenticated to authorize its admission as evidence, but is as valid to all purposes, as if it were recorded in the county of this State in which the land is
Second. The appellants moved to exclude two depositions from the jury, on the ground that there was no other evidence of the service of the notices for taking them, than by the affidavit of a private individual made before and certified by a justice of the peace; and that, as to one of them, the affidavit shows no personal service on the party to be notified, but that the notice was left at his residence with his wife, he being from home. Both of these objections are untenable. The act of 14th of February, 1820, 1 Stat. Law, 900, makes such affidavit as effectual as if made in Court; and it never has been doubted, that a private individual might, by his oath in Court, prove the service of notice. And we think there can be as little doubt that leaving the notice at the residence, and with the wife, of the party, in his absence, should be deemed sufficient; and especially when, as in the present case,,an ample interval is allowed between the date of the service and the time of taking the deposition, within which the party may be presumed to have received information of the fact. 2 Stat. Law, 1229; Printed Decisions, 141, Pope &c. vs. Commonwealth. Nor is it material that, in this case, the party at whose residence the notice was left, was not a party to the suit, but was an individual to whonn, by agreement of the
Third. The Register’s deed purporting to convey the land in question to Achilles Sneed, in consequence of a sale of the same land for taxes charged thereon, from 1792 to 1799, was ineffectual to pass the title under Fry’s patent, because the land was sold and conveyed as the land of Joshua Fry, and for taxes charged to him, when he had conveyed it to Vancouver, by deed regularly executed, acknowledged and recorded, in the year 1790—two years before any portion of the taxes for which it was sold, was charged or became payable, and it does not appear but that the taxes for the same year were paid by the real owner of the land. The Court, therefore, did not err in refusing to instruct the jury peremptorily, that this deed barred the plaintiff’s action.
Fourth. Nor did the Court err in refusing to instruct the jury, that if the defendants, and those from whom they derived the possession, had had the continued adverse possession of the land for twenty years before the commencement of the action, they should find for the defendants, as to so much land as was thus possessed. Such an instruction, without qualification, could scarcely have failed to mislead the jury. For although there was evidence conducing to prove that certain individuals had settled on the land about twenty years before the commencement of the suit, and that their possession was transmitted down to the defendants, the evidence did not conduce to prove that this possession, for the first fifteen or sixteen years, was adverse to the plaintiffs.
It is true that, in 1814 and 1815, Sneed recovered and obtained possession of different portions of the land by virtue of his deed from the Register, and there is no doubt that his possession, and that of the defendants who came in under him, was adverse to the lessors of the plaintiff. Rut his eviction of the previous tenants did not change the character of their previous possession, so as to avail him, or those claiming under him, as an adverse possession against the real holder of the legal title. The recovery by Sneed, was only five or six years before the commencement of the suit, and as there was no proof of any act or claim on the part of the previous possessors, evincing hostility to the actual holder of the title, the Court properly told the jury that, although twenty years continued adverse possession was a bar, it did not apply in this case.
Wherefore, the judgment is affirmed.