172 Ky. 381 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
The appellants are the children and grandchildren of Hawkens Jackson, who died twelve or thirteen years ago. On August 9th, 1848, a patent was granted to Haw-kens Jackson for one hundred acres of land on the Trace Pork of the Left Hand Pork of Brushy Creek, in Pike county. On the 13th day of April, 1912, the appellants instituted this action in the Pike circuit court for the recovery of the tract of land, which had been granted to their ancestor, against the appellee, Sam M. Davis, who they alleged was unlawfully in the possession of it and withholding it from them, and sought the re.covery of the possession of the land from him, as well as to recover of
The suit was originally brought at law, but by agreement of parties it was transferred to the equity side of the court’s docket and proof was taken by depositions and in all respects it was conducted and tried as an equitable action. The court below adjudged that the writing relied upon as the evidence of a sale of the land by Haw-kens Jackson to John M. Davis and of date of September 23rd, 1849, had never been executed by Hawkens Jacks bn and was invalid, hut it further adjudged, that the appellees had manifested a title to the lands by an adverse holding of it, by them, and those under whom they claimed, for the statutory period necessary to vest title in the occupants, and dismissed the petition. From this judgment the heirs of Hawkens Jackson prayed an appeal to this court.
(1) It is insisted by the appellants, that the appellee, Sam M. Davis, is not a competent witness and should not have been permitted to testify, and that the evidence given by him should not now he considered. This contention is based upon the fact that both he and his wife,. Ida Bell Davis, are parties to this action, and that she is claiming to be the owner of the land, which is sought to be recovered by the action. Exceptions were not filed to the deposition of Sam M. Davis, and the trial court did not pass upon the question of his competency as a witness. The deposition of Ida Bell Davis was not taken. Section 606, subsection 1, of the Civil Code, provides, that in actions, which might have been brought by or against a wife, if she was unmarried, either the husband or wife may testify, but, not both of them may testify. In such eases the wife, when she is the real party in interest in the suit, may elect to testify herself or to have her husband testify for her, but both of them' may not testify. As the claimant and in possession of the land in controversy, she could have been sued for the recovery of the possession of the lands, if she was an unmarried woman; and if she was an unmarried woman she ,could maintain an action for their recovery, if ejected from the possession. Hence, her husband was a competent witness for her, she not having testified. Taylor, Jr., & Sons v. Johnson, 30 R. 656; Wise v. Foote, 81 Ky. 10; Howard v. Tenney, 87 Ky. 52; Glover & Durrett v. Suter, 18 R. 1018.
Such a writing as the one, in question, is admitted as evidence, in support of title, without direct proof of its execution, if it is found in the proper custody, is unblemished by alterations and otherwise free from suspicion, and appears to be as much as thirty years of age. Bugin v. Chenault, 9 B. M. 285; Harlin, etc. v. Howard, etc., 79 Ky. 373; Boyd v. Bethel, 10 R. 470; Thruston v. Masterson, 9 Dana 233; Winston v. Gwathmey’s Heirs, etc., 8 B. M. 20; Cook’s Heirs v. Totten’s Heirs, 6 Dana 109; Bennett v. Runyon, 4 Dana 422; Taylor v. Cox, 2 B. M. 429; Davidson v. Morrison, 86 Ky. 397 ; Thompson v. L. & N. R. R. Co., 110 Ky. 973. After the admission of such a document, as evidence, its weight is then a matter for the tribunal, whose duty it is to. determine the facts at issue. In the instant case-, the writing came from the custody, wherein it would naturally be supposed to be — in a bundle of old papers, which John M. Davis had, in his lifetime, in his custody, and relating to lands owned by him. It is not blemished by alterations and there is .nothing about it to excite suspicion of its want of genuineness, and appears to be as old as it purports to be. John M. Davis had held the land in possession under the writing. Taking into consideration the extraneous facts in proof, which go to support the existence of such a document, there does not-seem to be any convincing reason for holding that it is not the act of Hawkens Jackson.
The judgment is therefore affirmed.