173 Ky. 262 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
William Threlkeld, Sr., and others brought this suit against Alice Garvin and others to recover a tract of six and one-third acres of land located in Oldham county. From a verdict and judgment in favor of the plaintiffs, defendants appeal.
While defendants deny plaintiffs’ title, it is admitted that plaintiffs have a title of record to the land in controversy, so that phase of the ease may be eliminated.
The only grounds on which the defendants relied to defeat a recovery by plaintiffs were: (1) adverse possession; and, (2) a parol agreement, by which the division line between them and plaintiffs was fixed and a partition fence erected thereon. Plaintiffs deny the plea of adverse possession, and further contended that they and the defendants agreed to have the dividing line surveyed and fixed and to have the partition fence erected thereon; that the fence actually erected was not on the agreed line but was a mere temporary fence, and it was so understood by the parties.
Plaintiffs and defendants own adjoining tracts. Plaintiffs have title to all of the land west of “Tenant’s old line,” while the land east of that line is owned by defendants. William Threlkeld, Sr., says that up to about eight years ago there was some question between
For defendants, Henry Garvin, who was forty-three years of age, testified that he had lived on the land practically all of his life. From his earliest recollection there had been a fence between the two tracts. He had
William Threlkeld, Sr., testified in rebuttal and denied that the division line was fixed by parol agreement and that the fence was built on this line. On the contrary, he says that the fence was built merely for temporary purposes and that under the agreement the old “Tenant line” was the true dividing line, and whenever that line was established a new fence was to be built thereon. Other witnesses corroborated William Threlkeld, Sr.
Under the court’s instructions the jury were authorized to find for plaintiffs if they believed from the evidence that the land in controversy lay within plaintiffs’ one hundred and fifty-acre boundary. On the other hand, they were authorized to find for defendants if they believed from the evidence that the defendants had been in the adverse possession of the land in controversy for more than fifteen years, or that plaintiffs and defendants agreed on the dividing line and thereafter built the division fence on that line, pursuant to said agreement.
The purpose of the suit was to recover all of the land in possession of the defendants that lay west of the “Tenant line.” The old fence referred to by the different witnesses lies west of this line. Between the “Tenant line” and the old fence are about two or two and one-third acres of land. While the new fence cor
In view of a reversal of the case, another question is necessarily presented, namely, the validity of the two parol agreements relied on. by the parties. It will be observed that the Garvins testify that the division line was agreed on by the parties and the fence subsequently erected on that line. On the other hand, this agreement was denied by the Threlkelds, who claim that the division line was to be established on the old “Tenant line ’ ’ when fixed, and that a new fence was to be erected on this line. These alleged agreements were made about eight years before the parties testified. While the validity of parol agreements to settle disputed boundaries was long resisted on the ground that, in effect, they passed the title to real property without the solemnities required by the statute, it is now settled that where the dividing line is uncertain and there is a bona fide dispute as to its location and the parties agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions of the law that regulate the manner of conveying real estate. The reason for the rule is that the parties do not undertake to acquire and to pass the title to real estate, as must be done by written contract or conveyance. They simply . by agreement fix and determine the situation and location of the thing that they already own, the purpose be
This view of the question accords with the further view that such agreements are not prohibited by the statute of frauds or the statutes regulating the manner of conveying real estate. Clearly, if such agreements are valid, then acquiescence and adverse possession for the statutory period are not essential to their validity. There are cases, however, where the original parol agreement cannot be shown by direct evidence. In such cases, the only way of proving the original parol agreement is to show that the established line was long acquiesced in by the parties, and the lopger the acquiescence the more valuable such evidence becomes. We, therefore, conclude that, in order to establish the parol agreement relied on by the Garvins, it was not necessary to show that the line claimed to have been established by that agreement was followed by the acquiescence or adverse possession of the parties for a period of fifteen years. All that was necessary was to show that the dividing line was actually established and thereafter recognized or acquiesced in by the parties for a considerable while. In view, however, of the conflicting evidence in regard to the agreement itself, and its subsequent execution by the erection of the fence on the alleged dividing line, we conclude that the question was properly one for the jury.
When we come to consider the alleged parol agreement testified to by the Threlkelds a'different question is presented. While they denied the parol agreement relied on by the Garvins, they further testified that the parol agreement actually made by the parties was to the effect that the “Tenant line” was to be established by a surveyor and the division fence erected on that line. It will thus be seen that the location alleged to
If, upon the return of the case, the evidence on the question of adverse possession be substantially the same, the trial court will direct a verdict in favor of the Garvins for the land lying between the “Tenant line” and the old fence. The court will also instruct the jury, in substance, to find for plaintiffs as to the land lying between the old fence and the new fence, unless they believe from the evidence that the plaintiffs and defendants agreed upon the location of the line between their respective lands and built the dividing fence thereon pursuant to said agreement, and thereafter acquiesced in such location for a considerable period of time, in which event they will find for the defendants.
Judgment reversed and cause remanded for a new trial consistent with this opinion.