153 Ky. 452 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing.
Plaintiffs, J. D. White, S. U. Haworth and W. J. White, brought this action of ejectment against defendants, Luther Brown and Ethel Brown, to recover about ten acres of ground lying in three tracts in Hickman County, Kentucky. The defendants denied the title of the plaintiffs and pleaded title in themselves, both by record and adverse possession. They also pleaded that certain deeds constituting plaintiffs’ chain of title were
The facts developed by the record are as follows:
In the spring of 1890, C. C, Mengel, Jr., and Bro. Company (hereinafter called the Mengel Company), a corporation organized under the laws of this State, owned a tract of land situated in Hickman County, Kentucky, containing' about 500 acres. The whole tract at that time was in the shape of a rectangular parallelogram, with the Mobile & Ohio Railroad beginning at the southeast corner and running diagonally across the east end of the tract.
On May 1st, 1890, the Mengel Company conveyed t® Joseph Crossland, a colored man, about 141% acres oA the west end of the 500-acre tract. The land so conveyed is described in the deed as follows:
“All of that certain tract of land in the County of Hickman and State of Kentucky, bounded and described as follows, to-wit: Beginning at a large white oak in Dobson’s line, thence south 61%. degrees east 109 poles and 3 links to a stake in McLane’s Branch', with elm and sweet gum pointers, thence S. 28% degrees "W. 210 poles to a hickory, dogwood and elm, thence North 61% degrees W. 102 poles to a sweet gum, thence N. 28% degrees E. 38% poles to a sweet gum, thence N. 61% degrees ~W. 7 poles to Joseph Crossland’s southeast corner, thence N. 28% degrees E. 171% poles to the beginning, the said tract being the northwesterly portion of the tract of land conveyed by deed to Joseph Huffaker, &c., to said first party therein called C. C. Mengel, Jr., & Brother Company, instead of its correct name of C. C. Mengel, Jr., & Bro. Co.”
On May 26, 1891, the Mengel Company conveyed to Joseph Crossland about 80 acres of land lying in the north central part of the 500-acre tract, and just west of the Mobile & Ohio Railroad. The description in the deed is as follows:
“Beginning at a stake on the M. & O. Railroad, 50 feet from the center of the right of way and running thence north 63% degrees west 166 poles and 16 links to a stake with gum and elm pointers, thence south 28 degrees west 75 poles to a stake with red oak, elm and hickory pointers, thence south 63% degrees east 166 poles and 16 links, thence north 28 degrees 75 poles to the beginning.”
“Beginning at a stake fifty feet west of 'the center of the M. & O. R. R. in the line of the R. R. Land, thence N. 61% degrees west 170 poles to a stake in the branch, thence south 28%degrees west 76 poles to a stake with pointers, thence S. 61% degrees E. 205 poles to a stake 50 feet west of the center of said railroad with elm pointers, thence northward with said railroad to the beginning, containing 89 acres.”
After selling the two tracts, one consisting of 141% and the other consisting of about 80 acres, the Mengel Company continued to own the balance of the land until June 10, 1905. On that day it sold the balance to Isaac Bodkin. The deed describes the land conveyed as the whole tract of 500 acres, giving its metes and bounds, and then excepts therefrom the tract of 141% acres, sold to Joe Crossland on May 1,1890, and also the tract of about 80 acres sold to Joe Crossland on May 26, 1891. Subsequently Bodkin sold the land conveyed to him to W. L. Salmon by deed dated October 15, 1908. Salmon sold and conveyed' to the Hardy Grain Company, a corporation, by deed dated March 16,1909. Thereafter the Hardy Grain Company went into bankruptcy, and S. Waddell and others, trustees in bankruptcy of the Hardy Grain Company, conveyed the land to plaintiffs on July 11, 1910.
It will be observed that both plaintiffs and defendants claim through a common grantor, the Mengel Company. The following plat shows the land in controversy:
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The evidence shows that if the courses and distances mentioned in the second deed to Joe Crossland be followed, the land so conveyed will be represented by the figure B, C, D, A. The conveyance, however, does not show any established corners at the points B, C and D. The evidence does show, however, that there are established corners at E and F, and that these comers correspond to the corners called for in the second deed to Joe Crossland. There is also evidence to the effect that there is a marked line from E to F and from F to D and for a short distance beyond D. If the courses and distances in the second deed to Joe Crossland be followed, the survey stops at the point D; but there is no established corner either at D or at G. There is some evidence tending to show that Joe Crossland claimed to the line E-F on the west, the line F-G on the south and to the railroad right of way on the east. There is also evidence to the effect that he claimed no further than the lines B-0 on the west, C-D on the south and A-D on the east. The evidence further shows that none of the strips of land in controversy were enclosed until a short time prior to the institution of this action, although there is evidence to the effect that a field of about 60 acres on the 80-aere tract was cleared and in cultivation, and this field extended in places west of the line B-C and south of the line C-D. The evidence, however, fails to show for what period of time the field was cleared or cultivated. There is practically no evidence of possession of the tract A, D, G, A, except the occasional cutting of timber. About a year or more before the bringing of the action defendants extended their fence so as to follow the lines A, E, F, G, A.
The trial court evidently construed the second deed to Joe Crossland, as including only the land embraced within the lines of A-B, B-C, C-D and D-A, as he authorized a recovery on behalf of defendants only in the event that they and those through whom they claimed had been in adverse possession of the land in dispute for the statu
As to the triangular strip of land, A-D-G-A, a different question is presented. There is no established corner at D or beyond D. The line F-D does not call for a corner on the railroad right of way, nor does the last call in the deed run with the railroad right of way. On the contrary, the call from F to D corresponds in distance with the call from A to E, and the last call in the deed corresponds with the line A-D and runs northeast instead of northwest with the railroad right of way. There can be no doubt, therefore, that the tract A-D-G is not included in the second deed to Joe Crossland. Having no record title to this tract, the Crosslands could not acquire title against the superior title holder by merely claiming beyond their deeded boundary, and defendants who acquired title through the Crosslands, who had no title, although their deed covered the triangular strip in controversy, acquired no title by their deed; and being junior title holders, and not having actually entered on the strip in controversy and held actual possession of it for the statutory period, they acquired no title to this strip by adverse possession. As defendants have no record title to the triangular strip, and as the proof is insufficient to show adverse possession for the statutory period, it remains to consider the plea of champerty. In this connection it is proper to say that in order to maintain a plea of champerty, possession by actual inclosure is not required. All that is necessary is actual adverse
Other questions arise which it will be necessary to consider. The objection that the United States Court for the District of Tennessee had no jurisdiction of the land in controversy because it lies in Kentucky is, without merit. Under the Bankruptcy Act, the trustees acquire the title of the bankrupt wherever his property A located, and the court having jurisdiction of the bankrupt has jurisdiction to order and approve a sale of his real estate, though lying in a district other than the district in which the proceedings are instituted. Thomas v. Woods, 97 C. C. A. 535, 173 Fed., 585, 26 L. R. A., 1180, and cases cited.
The deed from the trustees to plaintiffs having been properly acknowledged and recorded, a certified copy of
Notwithstanding this fact, however, there is a link in plaintiffs’ title which has not been sufficiently proven. Under our statutes and decisions, a commissioner’s deed proves itself; that is, it is evidence of the vesting in the grantee of the title of the parties to the proceeding. For that reason no other evidence is required. Hilton v. Belcher, 114 Ky., 172. We have no statute making a deed of a trustee in bankruptcy, or its recitals, prima facie evidence of title. In the absence of a statute, such recitals in a deed are only binding on the parties, and cannot be regarded as evidence of title against strangers.
As plaintiffs’ title stands, therefore, there is no proof of title in the trustees or of authority to make the sale. On a return of the case, this hiatus may be supplied by properly certified copies of the orders in the bankruptcy proceeding, showing the adjudication of bankruptcy, the appointment and qualification of the trustees named in the deed, and the approval of the sale.
Judgment reversed and cause remanded for new. trial consistent with this opinion.