206 Ky. 624 | Ky. Ct. App. | 1925
Opinion op the Court by
-Affirming.
By this action appellant sought to enjoin alleged trespasses by appellees upon certain land in which it claimed the fee. That it has title to the land under three grants, hereinafter called the McCuliom patents, unless it is covered by an older patent known in the record as the Pharis Roberts 50-acre patent, is admitted, as is also the fact that appellees have no title unless by adverse possession. That they have not proved any such title is, we think, too clearly established to admit of argument, and, as their counsel practically concedes this to be true, we shall not further discuss that question.
But as appellant’s possession of the land in controversy, as well as its right to the relief sought, depends upon whether it has title thereto, it becomes necessary to determine whether or not this older patent covers the land in controversy, and if so whether appellant owns an undivided interest therein, acquired since the filing of this action, that entitled it to the relief sought, which was denied by the chancellor.
That appellant recognizes this as true is strongly indicated by its purchase of several undivided interests in this patent, during the pendency of this action, from the parties it conceived to be the owners thereof. We are therefore clearly of the opinion it was not entitled to the relief sought under the MeCullom patents, and upon which its right thereto depended when the action was begun.
Coming now to our second question, a somewhat more difficult proposition is encountered because of the state of the pleadings. Appellant never amended its petition, which is based upon the alleged ownership of the entire fee, but, as shown by its proof, its then claimed title was derived from the MeCullom patents, which are 'inferior to the Pharis Eoberts patent. As a consequence, proof of an after-acquired adverse title to an undivided interest in the land under that patent was clearly not responsive to the pleadings, but there was neither objection nor exception to the introduction of any. of this proof, and we take it all parties elected to> try plaintiff’s title and right of recovery upon all of the proof and at the time of submission rather than when the action was instituted.
It results therefore that when appellant, during the pendency of the action, acquired from some of the heirs of Swinfield Roberts their supposed undivided interests in this patent, it was not only doubtful whether they ever owned any interest therein, but clear that their deeds to appellant were champertous for the reason that appellees were in possession and claiming same adversely under color of title from the heirs of Pharis Roberts.
We are therefore of the opinion that plaintiff failed to manifest a right to the relief sought, either by reason of its ownership of the McCullom patents and upon which the action was instituted, or because of its after-acquired deeds from some of the heirs of Swinfield Roberts.
Wherefore the judgment is affirmed.