178 Ky. 674 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
Plaintiffs, Stearns Coal and Lumber Company, and Kentucky-Tennessee Property Company, sued F. M. Boyatt, Andy Boyatt and others in trespass to try a title tp certain tracts of land in Whitley county. A trial before a jury resulted in a verdict and judgment in favor of the defendants, on their plea of adverse possession. On appeal to this court it was held that the Boyatts had never been in the adverse possession of any portion of the lands in controversy beyond their actual enclosures and that with the exception of the lands embraced within their enclosures, plaintiffs were entitled to a peremptory instruction. Stearns Coal & Lumber Company, et al. v. Boyatt, et al, 168 Ky. 111, 181 S. W. 962. On the return of the case the question of defendants’ adverse possession of the enclosed lands was submitted to the jury which returned a verdict in their favor. As to the lands outside the enclosures, the jury was instructed to find for plaintiffs. Judgment was entered accordingly and only F. M. Boyatt appeals.
The first ground urged for a reversal is that plaintiffs failed to show title of record to the land in dispute.- This contention is predicated on the claim that the Hudson and Wait patent of 1855 was void as to the land in controversy, because the land then lay in Wayne county and the patent was based on warrants issued by Whitley county. This phase of the case we deem it unnecessary to discuss. By “an act to establish the dividing line-between the counties of Wayne and Whitley in this State,” which became a law April 22,1882, acts 1881-82, vol. 2, page 815, the land in controversy even if theretofore in Wayne county, became a part of Whitley county, and immediately thereafter the owners of the Hudson and Wait patent caused the land there embraced to be resurveyed and blocked into tracts of 200 acres each and patents to
But it is argued that the evidence of adverse possession of P. M. Boyatt and those through whom he claims, was sufficient to malee a question for the jury. In this connection it is argued that the evidence tended to show that P. M. Boyatt and his predecessors in title, entered upon the land in controversy long prior to any possession by plaintiffs and those through whom they claim, improved and enclosed a portion of the land and occupied and claimed the remainder for a period of fifteen years, not only to a well marked boundary but also under color of title. The claim of a holding to a well marked boundary may be summarily disposed of by the statement that no well marked boundary was shown. When we ,come to the question of an adverse holding under color of title, we find in the record two deeds, one from Elisha Boyatt, Jr., to Wm. Anderson, dated November 15,1890, acknowledged April 13, 1901, and recorded April 19, 1901; the other from Wm. Anderson and wife to Elisha Boyatt, Jr., dated April 23,1901, acknowledged June 8, 1901, and recorded June 11,1901. We further find that Prank Mus-grove, who claims to have put the improvements on the land, testified that he bought the land from Elisha Boyatt in the year 1892, but received no deed for it. He also says that he held the land for two or three years and then “recanted the trade” by delivering possession to Elisha Boyatt, who paid him for the improvements he had made. The contention is made that the deed from Elisha Boyatt, Jr., to Wm. Anderson, though not recorded until April 19, 1901, was color of title from its date, November 15, 1890. It is unnecessary to determine in this case whether an unrecorded deed will constitute color of title, for there is no proof that the deed in question was delivered to Wm. Anderson before it was acknowledged and recorded and that he took and held possession under the deed.
Judgment affirmed.
