124 Ky. 139 | Ky. Ct. App. | 1906
Opinion of ti-ie Court by
missioner
Affirming.
This suit was brought by appellants, plaintiffs below, to quiet the title to an undivided one-third of 925 acres of land in Harlan county, to which they asserted title by virtue of a purchase from the heirs of Hezekiah Branson, who' obtained a patent for this body of land in 1851, under a survey made in 1848. The deed conveying this interest was executed in 1889 and recorded in 1890. Appellee filed an answer and counter-claim, traversing the petition, and alleging in the counter-claim that he was the owner of and in the posession of 421 acres of the 925 acres described in the petition. The part that he asserted title to included the land conveyed to appellants by the Bransom heirs. “He prayed that the plaintiff’s petition be dismissed, that his title to said land be quieted, that plaintiff’s be required to release to defendants any and all claims they have to said land herein described, and for costs and all proper relief. ’ ’
Appellee by rejoinder controverted the allegations in respect to this deed, and denied that any deed affecting the land in controversy had ever been made. Pending this action, the heirs of Hezekiah Bransom filed their petition to be made parties and asserted title to the other two-thirds of the 925 acres, asking
It appears from the evidence in the case that appellants had never been in possession of the land claimed by them, and that the 421 acres adjudged by the court to appellee lies within the lines of the 17,200' acres for which a patent was issued to Dickinson in 1846. Appellants assail the validity of the patent to Dickinson, and also rely on the deed of release before mentioned. This deed of release, which appellee denies was ever'made, and attacks the sufficiency of for reasons not here necessary to mention, does not aid appellant, because there is no evidence that ITezekiah Bransom at the time this deed was made was, or ever had been, in possession of any part of the land embraced in this patent. The deed also shows on its face that it relates to- land for which Dickinson-obtained a patent October 9,1853, while the Dickinson patent, relied on in this case by appellee, was issued in 1846. The patent issued to Dickinson in 1846 for this 17,200 acres of land does not mention or exclude any prior patents for land embraced within its boundary, although the surveyor whose evidence was taken for appellee, and who files a map of the Dickinson patent as a part of his deposition, testifies that there
In Hall v. Martin, 89 Ky. 9, 11 Ky. Law Rep. 241, 11 S. W. 953, the appellee claimed under a patent to McNew, the boundaries of which were definitely set forth by courses and distances, as are the boundaries of the Dickinson patent. The McNew patent excluded the land contained in prior grants, of which there were two. In that case, as in this, it was contended that the McNew patent was void because it failed to describe the excluded prior grants. The court in answer to this said: “There is no claim by the appellee of his right to recover any of the land held under the elder grants; but the con-' troversy is with the junior patentees, and the question of fact arising between these conflicting claims we will not consider, as the case must go back for another trial. The exclusions or elder grants within the boundary of the McNew patent, under which the appellee claims, are not identified or mentioned in the patent to McNew — neither described by boundary nor by the name of the patentee or grantee. The McNew patent proceeds to define the specific boundaries of the patent, as much so as the courses and
In the case at bar, although the patent does not mention prior grants, it is conceded that prior grants are contained within the boundary, and the law will exclude from the operation of the Dickerson patent the prior grants. There is some question as to whether or not appellee was in possession'of the land in controversy,' and it is insisted that, as his cause of action asserted in the counterclaim is for the purpose of quieting the title to the land, both the legal title and the possession are necessary under the provisions of section 11 of the Kentucky Statutes of 1903, and the decisions of this court involving this question. Cornelison v. Fouschee, 101 Ky., 257, 19 Ky. Law Rep., 417, 40 S. W., 680; Packard v. Beaver
Several minor defects are pointed out in the chain of title by which appellee holds this land, but we do-not deem it necessary to discuss them. It is sufficient: to say that in our opinion they do not affect the-validity of appellees’ title in this controversy with appellant.
The judgment is affirmed.