183 Ky. 146 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
This controversy arises from the rival claims of the appellant, Julian Bordes, and the appellee, Alfred Leece, to the ownership of about one and one-half acres of land. The appellant owns a tract of land, containing 110 acres, and the appellee owns a tract, containing 35 acres. These tracts adjoin, and the disputed one and one-half acres lies upon one side or the other of the line, which divides their respective holdings. The deed, under which Bordes claims ownership of his land, describes the dividing line between his land and that of Leece, as a line “beginning at a stone, and running thence, N. 87° West, 104% poles to a stone, in Jane Roberts’ line.” The stone in Jane Roberts’ line, however, was placed there, but a few months, before the institution of this suit. The deed, under which Leece claims his lands, describes the dividing line between him and Bordes’ lands, as beginning at a stone, near the angle of two fences, and thence running N. 88 W. 104% poles to a stake, in Jane Roberts’ line. The disputed land lies between a line beginning at the stone and running thence N. 88, W. 104% poles to Roberts’ line, and a line run from the stone N. 87% W. 104% poles to Jane Roberts’ line. It is thus a triangular piece of ground, commencing at a point at the east end, 104% poles, in length, and about seventy-five yards, in width, at the western end. Bordes alleging, that he was the owner and in the possession of the disputed land, claiming, that it was a portion of his tract, sought damages against Leece for trespassing upon it. Leece denied the ownership or possession--Ijy Bordes of the disputed lands; confesses to cutting timber trees, thereon; and claimed ownership and possession of it, and prayed, that, his title to it be quieted. Bordes replied, traversing all the claims of Leece, and plead, that before the institution of the suit, that he and Leece had made a parol agreement, establishing the dividing line between their respective lands, and that in ac
The parol proof shows, without contradiction, that Wilmott, in the year, 1852', sold the tract" óf land, now claimed by Leece, to one Johnty Leece, who resided upon it until the year, 1880; that very soon after the sale to Johnty Leece, Wilmott erected a line or division fence, between the lands retained by him, and those sold to Johnty Leece. This fence extended from the stone corner, to Jane Roberts’ line, about along the course of the line between those points, on a course of N.-88 Wvfrqm the stone to the Roberts line. Prom the stone toward the west, for a distance of two hundred yards, the’ land, contiguous to the fence upon Leece’s side, of the fende,’was cleared and cultivated. Johnty Leece’s lands, lay on the north side of. this fence, and he exercised dominion over the lands upon that side of the fence, and up to it, as long as he held the property, while Wilmott used and controlled the lands upon the'south side and up to the fence. If the line between the lands was ever marked in any way, other than by the fence, there is no evdence of it. The fence was there as late as the year, 1880, and Wilmott, nor either of his successors' until the appellant, Bordes, was ever known to have claimed, or attempted any act of ownership of the property, on the north side of the fence. The fence rotted down after, 1880, and for a number of years, there was practically, no fence existing, but, in 1902, Leece, the appellee, rebuilt the fence, but, slightly further toward the north, than the original fence. There is parol proof, that the line, in controversy, w'as run by surveyors, on two or three occasions, 'and that in surveying it, they ran practically, where the line from the
The written evidence of title offered by Bordes, was:
(1) A deed from his brothers, who were co-heirs with him of his father, John B. Bordes. This deed was executed on the 21st day of April, 1911, and described the line, in controversy, as “beginning at a stone, comer to a 35 acre tract sold to Johnty Leece, and formerly a comer to the lands of William Wilmott, thence with a line of said 35 acres, N. 87 W. 104% poles to a stone in Jane Roberts’ line.” The deed recited, that John B. Bordes purchased the land from S. Noland.
(2) A deed from S. Noland, to John B. Bordes, executed on the 18th day of January, 1878, which .recited, that the land conveyed, was a tract upon which M. G. Wilmott “lives” and which was sold under a judgment of the Rockcastle circuit court, on the 22nd day of June, 1863, and purchased by Noland and conveyed to him by the sheriff of the county, on the 20th day of August, 1870. The deed further recited, that Noland had attempted to convey the lands to Bordes, by a deed executed on January 26,1871. This deed did not describe the lands, purported to be conveyed by metes nor bounds, courses nor distances. ’
(3) A deed from McClure, sheriff of Rockcastle county, to S. Noland, executed on August 26, 1870. This deed recited, that the land was sold under executions, issued upon judgments of the Rockcastle circuit court, against M. G. Wilmott, on June 22, 1863, and the equity of redemption therein, was sold on the 28th day of September, 1863, and S. Noland was the purchaser. The deed contained no description of the lands further, than, being the place where M. G. Wilmott “lives.”
(5) A judgment of the Rockcastle circuit court in favor of John B. Bordes against N. D. Wilmott, and the same plaintiff against R. B. Wilmott, and in which Bordes recovered a tract of land, of which the one now owned by the appellant, Bordes, is a part. The line, in controversy,was described in the judgment as“beginning at a stone, a corner of a 30 acre tract of land, now owned by J. K. McClary, thence with a line not yet established, N. 86 W. 104 poles to a stake in Jane Roberts’ line.” This judgment, as copied in the record, does not bear any date, but, presumably, was rendered in 1887, as it directed the sheriff to execute a writ of possession, for the lands on or before January 1, 1888.
The parol proof shows that the appellant, and those under whom he claims title, including his father and the Wilmotts, have been in the actual possession of the tract of land now owned by appellant, since, 1850, and it is to be presumed, claimed and had actual possession to the extent of the boundaries described, in their title papers, where not in the 'actual possession of some other. Neither the deed from Wilmot, by the sheriff, to Noland, nor the deed from Noland to John B. Bordes, from whom the appellant inherited his land, contains any evidence, that the lands conveyed, embraced' the lands, in' controversy. The deed from M. (x. Wilmott to B. R. Wilmott, is not in appellant’s chain of title, since the grantor, in that deed had lost his title to the lands, long before it was executed, and could only be evidence of the extent of the grantees’ unlawful possession, up to the time, he was ousted by appellant’s father, by the judgment of the court. Besides, when that deed was made and during the occupancy of the land by the grantee, the predecessors of the appellee, in title and occupancy, were- in the actual possession of his land up to the line from the stone, N. 88 W. 104y3 poles to Roberts’ line. As before stated, Johnty Leece was in the actual possession of the land, in dispute, claiming, it as his own, up to the year,
Whatever may be the rule which applies to the enforcement of a parol agreement, establishing a dividing line between adjoining land owners, when the exact location of the line is in doubt, and the subject of dispute between the owners, and where the evidences of the true
The instant case was one involving overlapping.deeds. There was no question, as to where the line was, which
The judgment is therefore affirmed.