119 Ky. 170 | Ky. Ct. App. | 1904
Opinion' or the court by
Affirming.
Appellee brought this .action by petition in equity under section'll, Ky. St., 1903, alleging that.it had both the legal title and possession of the land in controversy, and that ap
Section 12 of the Civil Code of Practice provides.: “In an equitable action, pi»operIy commenced as such, either party may, by motion, have the case transferred to the ordinary docked for the trial of any issue concerning which he is entitled to a jury trial;.but either party may require every equitable issue to be disposed' of before such transfer.” The issues made in this case were undoubtedly of ordinary cognizance. The action was properly brought in equity, but the issues made by the defendants were that the plaintiff was not the owner or in possession of the land, but that they and those under whom they claimed had been in adverse possession of it over thirty years, and were in such possession when the deed to plaintiff was made. They also denied that plaintiff’s title-included the land. The purpose of the provision of the Code is to allow a transfer to the ordinary docket of ordinary issues in an equity action. The issues’ made by the defendants were essentially the same as they would have been had the action been brought on the ordinary side of the
But it will be seen that the motion to transfer the action to the ordinary docket was not made for something like two years and a half after the answer was filed, and, as shown by the record, the parties had in the meantime .at a considerable expense substantially prepared thp case for trial as an equitable action. xVlthough the defendants were entitled to demand a jury trial, this right, like any other, must be seasonably’ demanded, and might be waived, not only by express consent to try the case in. equity, but by conduct from which such consent may be implied... The action, having been properly brought in equity, might be tried there, unless a jury trial was demanded. A failure to make this demand within a reasonable time was. an acquiescence in the action’s being on the equity docket, and a waiver of the right to demand a jury trial. This principle is applied throughout legal proceedings.' Where a person has an election as to one or two things, his failure to make an election in a reasonable time is held a waiver of his right where the other party will be prejudiced. Thus, in those cases where the plaintiff was required to give a bond • for costs, if the bond was not demanded by7 the defendant the right to it was deemed waived, and the action would not, for this cause, be dismissed. So, where there is a misjoinder of parties plaintiff, if the defendant does not object to the misjoinder before pleading to the merits, he is held to have waived the irregularity, or, if the court has.no jurisdiction over the defendant, he waives this if he does not make the.
We do not mean to lay down the rule that under section 12 of the Civil Code of Practice, the motion for the transfer of an action to the ordinary docket must be made when the answer is filed. We only mean that it must be made within a reasonable time, and that, where it is not made within a reasonable time, and the party has, by His conduct, impliedly consented to the trial of the case on the -equity docket, he should not thereafter be allowed to withdraw this consent to the prejudice of the adverse party. Whether there has been an unreasonable delay in making the. motion is a question to be decided by the circuit court in his sound discretion, and his judgment will not be disturbed here unless there is an abuse of discretion. In the casé befóte us we think the circuit court properly overruled the motion.
Whether the plaintiff’s title covers the land in dispute depends upon the proper construction of the following words in the deed made by Thomas Duckham to Bush and Quisenberiy: “Beginning at Grigsby -and Elkin’s corner on the cliff of the Smoky Fork of Devil’s creek, and running thence to the Hotel Gave, thence down the Hotel Cave branch to the Graining Block Fork of Red river; thence down the meanderings of said fork to the mouth of the Middle Fork of Red river so as not to- go over the cliffs to interfere with any lands or sugar tree on Red river; thence up the
The beginning corner is at 1, and is'undisputed. The second corner, Hotel Cave, is at 2 on the plat, if the cave is the corner. But it is insisted for appellants that the cliff running above the rave is known as “Hotel Cave,” and that the call is really for the cliff. Graining Block Fork and the Middle Fork at their junction form Red river. Along Graining Block Fork are precipitous sandstone cliffs some 300 feet high, and between the cliffs and the stream there is bottom land varying in width, but in all comprising a valuable body of land of several hundred acres. It is insisted for appellants that the deed runs to> the cliffs at Hotel cave, and follows the cliffs around to the mouth of Red river. It is insisted for appellee that the line runs to the cave at 2, and follows the meanders of Hotel Cave brant-h to Graining Block Fork and its meanders to the line of Elizabeth Townsend’s tract near the junction of Graining Block Fork and Middle Fork. The question turns on these words in the deed: “So as not to go over the cliffs or interfere with any lands or sugar tree on Red river.” The Hotel Cave branch is seven-tenths of a mile long, and Graining Block Fork, from the point where Hotel Cave branch strikes it to its junction with Middle Fork, is nearly two miles long. On February 27, 1837, or about six weeks before the deed to Bush and Quisenberry was made, Thomas, Duckham conveyed to Elizabeth Townsend the tract of land lying at the ’junction between Middle Fork and Graining Block Fork, and it is reasonable to conclude that in the deed
Appellants showed no record title to the land! They claim under Alex. Spencer, who made a settlement in the valley near the mouth of Hotel Cave branch, and under Patterson Ponder, who made a settlement lower down, and near the point marked “Dark Hollow.” We think it reasonably clear from the evidence that Patterson Ponder had sold in writing his rights to those under whom the appellee claims years before he made the bond under which appellants claim, and, while the proof is conflicting as to Spencer’s possession, we must give some force to the chancellor’s finding on the question of fact, and under all the evidence we have reached the conclusion that his finding that Sp'encer was not in continuous adverse possession of any of the land for 15 years should not be disturbed. While the testimony as to whether appellee’s title was champertous was conflicting, we think the decided weight of the evidence sustains the chancellor’s opinion.
•Judgment affirmed.
Judges Nunn and Paynter dissent from so much of the opinion as holds appellants had waived their right to have ihe case transferred to the ordinary docket for trial.
I’etition for rehearing by appellant overruled.