| Ky. Ct. App. | Mar 16, 1909
Opinion op the Court by
Affirming.
This action was instituted by Roberta S. Bryant and others, plaintiffs, against numerous defendants, including Alex Prewitt, to recover certain tracts of land. Defendant Prewitt had a separate trial, and the jury returned a verdict in his favor. From the judgment based on this verdict, this appeal is prosecuted.
During the progress of the case, the pleadings became very voluminous'. Finally the petition was reduced to the allegations of ownership on the part of plaintiffs and' the fact that each of the defendants wrongfully held1 possession of certain portions of the land. The answer's were reduced to a denial of the ownership of plaintiffs, and a setting forth of the lands claimed by the several defendants, and pleas of adverse possession.
It is first insisted by appellants (plaintiffs below) that the appellee nowhere denied the allegation of the petition that he had for five years before the institution of the action been wrongfully in possession of the property. In this, however, appellants are mistaken. The second paragraph of appellee’s answer contains a denial that he had Wrongfully held possession of the land for the last five years, or for any other period of time. By amended answer, filed on June 21, 1907, defendant denied that plaintiffs, or any of them, were then, or ever were, the owners or
It is next insisted that appellee’s answer, setting forth the tracts of land claimed by him, did not sufficiently comply with section 125, Civ. Code Prac. The answer uses the following language: “The defendant claims and owns a boundary of land which he understands is within the outside limit, of the-boundary set out in the petition herein,” etc. Then follows a description of the tracts claimed by appellee. It appears., however, that plaintiffs afterward filed a reply, in which they admitted that the tracts claimed by appellee were within the outside boundary set out in their petition. Furthermore, the case went to trial, evidence was heard upon the issue involved^ and a verdict returned' by the jury. We therefore conclude that the defect, if any, in defendant’s answer, was cured by the pleadings and verdict.
On the trial of the case two questions were submitted1 to. the jury:. The question of adverse possession of the defendant, and the question whether or not defendant w'as in possession of the tracts of land in question when .the deed was made from Chamberlain, trustee, to Roberta S. Bryant and others. It. is earnestly insisted by appellants that the court improperly permitted a recovery by defendant in the event he was in possession when the deed was made from Chamberlain, trustee, to Roberta S. Bryant and others. We think appellants are correct in this conclusion. Chamberlain had no interest in the land. He held it in trust for Mrs. Bryant and her children.
Although the instruction complained of was improper, we are of opinion that it was not prejudicial to the substantial rights of appellants. The latter proved neither actual nor constructive possession of the land' in controversy. On the other hand, defendant showed that he entered upon the lands in 1877, had them surveyed in 1882, and took out a patent in 1884, and another patent in 1888. He marked out a well-defined boundary, and claimed possession to this boundary. No one else was in possession but him. There was a controversy between- him- and a man by the name of Hubbard as to a portion of the land involved, and he obtained a deed to this tract from Hubbard. It is insisted that this estopped adverse possession as to this particular tract. This is not the case, however. It was simply a means of quieting his own title and preventing a lawsuit. Defendant cultivated a large portion of the land in controversy. He claimed all of it to a well-defined boundary. At the time of the suit he had held this land adversely for more than 15 years. Plaintiffs
Judgment affirmed.