136 Ky. 31 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
This action was instituted hy Dennis McClendon and appellant, Malinda E. Frye, against appellee in ejectment, to recover 120 acres of land in Pulaski county, Ky., of which they claimed to be the owners. The metes and hounds of the land were set out in the petition. By an amended petition they claimed that appellee was in possession of only 40 acres of the land described in their petition, and that it was situated on the west side thereof, that his possession, was wrongful, and sought to eject him therefrom. Appellee answered denying that appellants were the owners of the 40 acres, or any part thereof, and alleged that he was the owner of same, gave the metes and.bounds thereof, and alleged that.be and his vendors had been in the actual, adverse, continuous possession thereof, claiming it as their own, for more than 15 years before the institution of the action; he claimed the land both under paper title and the statutes of limitations. Appellants filed a reply controverting the allegations of the answer. Some time during the pendency of the action, and before trial,,
It appears from the testimony "that the 120 acres of land' described in the petition, which included the 40 acres in contest, is situated within the boundary of a patent issued by the commonwealth to Joseph Porter in the year 1852. The patent calls for 800 acres; hut -it is shown by other testimony to contain 2,500 seres, but excludes 700 acres within its boundary which was previously patented. • It was shown that after Porter’s death this patented land was sold by an order of court; that one Elliott purchased it, and was made a deed to it by the court’s commissioner; that Elliott conveyed it to Charles Frye; that, after Frye’s death, Dennis- McClendon, a son-in-law, and J. T. Frye, a son, purchased the interests of all the other heirs in this 120 acres. J. T. Frye sold and conveyed his one-half interest therein to one Burkett, who sold and conveyed same to appellant, the wife of J. T. Frye. It was also shown that in the year 1835, the commonwealth issued to one Lair a patent calling for 28 acres, which the testimony shows, without contradiction, is situated within the Porter patent and nearly all within the 120 acres described in the petition. It appears that one Johnson conveyed a boundary of land, described as the “Lair patent of 1835,” to a person by the name of Cain; that Cain conveyed it to Smith; that Smith conveyed it to Hill; that Hill
There was much testimony introduced by both parties with reference to adverse possession. Appellant’s proof tended to show that she and her remote and immediate vendors had been in the actual possession by actual enclosure of about 1% acres of the Lair patent for more.than 30 years, claiming the whole survey of 120 acres until they were forcibly ejected by appellee’s vendors about 10 or 12 years before the institution of this action; that 8 or 9 acres of the land was woodland and had not been inclosed by any one until 8 or 9 years ago, when appellee fenced it in. Ajopellee’s testimony controverted these statements and tended to show that the woodland had been inclosed for more than 15 years; that the land included in the Lair patent had been cleared and fenced by him and his vendors and had been in their actual possession for' more than 20 years before the institution of the action. It also appears from the testimony that the woodland referred to was covered by the Downey piatent, which is referred to in the Lair patent, which shows conclusively that the Downey patent is prior
It will, be observed, from what has been said, that the patentee of the land, Porter, through whom appellant derived title, had a patent that excluded 700 acres previously patented, and appellant introduced no testimony showing that the land in dispute was situated outside of the previously patented boundaries; but. on the contrary, there was evidence showing that the Lair and Downey patents, which are prior in date to the Porter patent, do include the land in dispute. The testimony conduces to show that the eight or nine, acres of wodland is covered by the Downey, and the balance by the Lair, patent. In view of these facts, and under the authorities appellee was entitled to a peremptory instruction, unless appellant showed herself entitled to same or some part thereof, by actual, adverse possession; not that the evidence shows that he was the owner of the land by paper title, but because appellant did not show herself the owner thereof. She could recover only, upon showing that the title was in her. Appellant alleged that she was the owner of the land and was entitled to recover it. Appellee denied her title and pleaded the statutes of limitations.
The issues involved here were also involved in the case of Fuller v. Kessee, 104 S. W. 700, 31 Ky. Law Rep., 1099. Appellant in that case brought an action to recover 200 acres of land which was included in a survey of 131,000 acres less 99,400 acres previously patented and excluded from, the boundary of the 131,000-acre patent. The testimony introduced in that case was similar to that in the case at bar. In that ease the court said: “On this proof the defendants insisted that a peremptory instruction should have
We have stated the substance of the testimony produced upon the trial by the parties with reference tq
Instruction No. 2, on the question of champerty, was proper. On another trial the court will give, in lieu of instruction No. 3, the following: If the jury should find for plaintiff, Malinda E. Frye, the whole of the land in contest, they should say so in their verdict; but, if they find for only a part of the land in contest, they should say what part. Nine jurors may find a verdict; but, if less than twelve agree on the verdict, all agreeing to it must sign, and, if they all agree to the verdict, the foreman alone may sign it.
For these reasons, the judgment of the lower court is reversed and remanded. for • further proceedings consistent herewith.