113 S.W.2d 832 | Ky. Ct. App. | 1937
Affirming.
On October 7, 1919, W.M. Willoughby conveyed to J.H. Rickman et al. 340 acres of land in Clay county, Miss., for $26,000, and warranted the title. Appellants are the remote vendees of Willoughby, and they sued him upon his warranty and sought to recover of him $897.06 for 12.2 acres which were included in this conveyance but of which they allege Willoughby did not then have seisin. The plaintiffs were unsuccessful and have appealed.
The tract of land conveyed extended for 1 3/8 miles east and west. For years there had been a road known as the "Bellen road" that ran practically north and south through this country and which crossed the east end of this 340 acres and cut off a strip on the east end, which strip is 435 feet wide at the north end, 430 feet wide at the south end, and extended 1320 feet north and south.
This strip, 1,320 feet long, of an average width of 432.5 feet, containing 12.2 acres, and lying east of the old Bellen road, is the property that brought about this controversy. This strip the proof shows is now claimed by the heirs of Mrs. R.M. Hawkins by adverse possession. The length, extent, and validity of their claim we will discuss later. That this 12.2 acres is included within the boundary conveyed by Willoughby is admitted, and there is no evidence whatever that it is or ever was included within any boundary under which the heirs of Mrs. Hawkins are holding, but it is claimed in pleadings, for the appellants, that Charlie Hawkins years ago took possession of all the property east of this old Bellen road and that he has had possession thereof continuously since then.
Plaintiffs allege in their pleadings that it is the heirs of Charlie Hawkins that are in possession of this 12.2 acres, while such proof as there is shows that it is the heirs of Mrs. R.M. Hawkins that are claiming this possession. Charlie Hawkins and Mrs. R.M. Hawkins were husband and wife; both are now dead; he died about 1917 and she in 1931.
There was no attempt made to set forth the laws of Mississippi on other questions.
This is a suit in a Kentucky court to recover upon a breach of covenant of seisin, which occurred in Mississippi if it did anywhere.
Witnesses testify this land has been in the adverse possession of Hawkins for thirty years. So much of their testimony in this regard as is not simply by way of conclusion is controverted either directly or by circumstances pointing inevitably to the contrary. The evidence preponderates in favor of the decision reached by the trial court, and we are convinced that its conclusion is correct.
Judgment affirmed.
Whole court sitting.