271 S.W. 700 | Ky. Ct. App. | 1925
Affirming.
Appellant brought this action to quiet his title to a described boundary. By answer and counterclaim, appellee claimed that the land in question belonged to him as a part of a larger boundary he owned. The trial court, on motion of the parties, transferred this action to the common law side of the docket for jury trial. At the conclusion of the whole testimony, the court peremptorily instructed the jury to find for the appellee, which it did, and from the judgment entered on this verdict, this appeal is prosecuted.
Appellant traced his title to the land in question through mesne conveyances back to a patent issued by the Commonwealth in 1876, known as the Friend or Lunsford patent, his immediate conveyance being a deed dated October 18, 1917. Appellee does not trace his title back beyond a deed from the Cincinnati Cooperage Company to Congleton and Williams, from whom appellee secured his deed in 1908. The description in this deed of *654 appellee covers practically all the property described by the Lunsford patent with the exception of a few little corners not in dispute and which were in this action awarded to appellant.
When appellee secured his deed in 1908, which he then promptly recorded, he entered on the land in question, claiming to its outside boundaries, and cleared about thirty acres thereof, planted an apple and peach orchard on the cleared ground and surrounded the same with a fence, making use of the cliffs where he could. There was a house on this cleared ground in which he lived until 1912. In this year appellee bought some land known as the Sparks property, which in part abutted on the boundary in dispute. He moved from the house in which he first lived over to a house on the Sparks property and connected up the fences surrounding the Sparks property with the fences on the disputed land. He continued to use and occupy all of the cleared land, both that of the disputed land and of the Sparks property as one farm, the witnesses saying that the fence between the Sparks and disputed land looked to them like a cross fence. There is evidence that he continued from 1912 on to pasture his stock on the disputed land, to raise corn thereon, to keep his fodder over in the old house, to maintain his orchards, and that at times he leased this old house to certain tenants. For a short while, in the summer of 1916, he was away from both pieces of property, but he returned in the fall and took up the occupancy of the same as he had theretofore done.
The defense of appellee is that the deed to appellant in 1918 is void, being champertous within the meaning of section 210 of the Kentucky Statutes. In the case of Tennis Coal Co. v. Hensley,
The judgment of the lower court is affirmed.