196 Ky. 246 | Ky. Ct. App. | 1922
Affirming.
This action in ejectment brought by appellant and plaintiff below, Kentina-Puckett Corporation, against appellee and defendant below, Henry 0. Simpson, involves the title to a small parcel of land in Harlan county containing between four and five acres. Defendant denied plaintiff’s ownership and asserted title in himself; he also interposed a plea of champerty, but which was unnecessary since that defense is available if sustained by the evidence without a special plea. Section 212, Kentucky Statutes; Krauth v. Hahn, 139 Ky. 607; Keaton v. Sublett, 109 Ky. 106; Shaw v. Revel, 21 Ky. L. R. 348, and O’Bannion v. Goodrich, 23 Ky. L. R. 313.
A trial before a jury, under fair and proper instructions of the court submitting the various contentions relied on, and for which there was evidence to support, resulted in a verdict for defendant followed by a judgment dismissing the petition. Plaintiff’s motion for a new trial was overruled and it appeals, and through its counsel contends, that the court erred in refusing to sustain its motion for a peremptory instruction in its favor; in declining to give the jury instruction “A” offered by it, and in giving to the jury instructions 1 and 2 on its own motion.
Each party claimed under only a possessory title; neither of them attempted to trace a record title to the Commonwealth, and the defense of champerty is directed to the deed obtained by plaintiff’s immediate vendor, Kellioka Coal'and Coke Corporation, from J. B. Noe on April 25, 1911, which corporation conveyed the land to plaintiff on November 23, 1917. Noe claimed the title under two deeds, one dated September 3,1907, from Matilda Simpson (nee Osborn), a former wife of John Simpson, and from whom he was divorced and afterwards married Elizabeth Simpson, and the other from John Simpson and his wife, Elizabeth Simpson, of date January 18, 1908. John Simpson claims to have bought the land under an oral contract from one Jackson Blanton, who obtained it from Osborn, the father of Simpson’s first wife, but the contract of purchase was oral and its date is not given. However, John Simpson testified that, “We lived on it from thirteen, fourteen, fifteen years,” but he stated later in his testimony that, “I am satisfied I stayed on fit fifteen years.”
When John Simpson and his first wife, Matilda, separated and were divorced, she and some of her children
Under the above facts, the court told the jury that if it believed that Simeon W. Saylor was in the actual adverse possession of the land in controversy, either by himself or tenants, at the date of the deed to the Kellioka Coal and Coke Corporation, and that he remained so until he executed the bond for title to the defendant on March 23, 1915, then the jury should find for the defendant. In another instruction the jury were told that if it believed from the evidence that tire land was in the actual possession and occupancy of plaintiff by its tenant, the defendant, Henry Simpson, under the lease before mentioned, at the date the latter obtained his bond for title, then a verdict should be returned for plaintiff, unless the lease contracts were procured by fraud, whereby defendant was induced to sign them through misrepresentations of the agent of the Kellioka Coal and Coke Corporation as to the land covered by them, and if the jury so believed it would find for defendant. There was abundant evidence to support the various issues involved in the instructions and we entertain no doubt as to their correctness under the testimony in the ease. Of course, the defendant could not attorn to Simeon W. Saylor while he was legally the actual tenant of the Kellioka Coal and Coke Corporation, and vice versa, he could not attorn to it, as plaintiff contends he did, by executing the lease contracts referred to when he was tenant of Simeon W. Saylor, without the consent of his respective landlords. Cases forbidding such attornments are: Chambers v. Pleak, 6 Dana 426; Turner v. Thomas, 13 Bush 518; Trabue v. Ramage, 80 Ky. 323;
As we have seen, there was abundant evidence to show that defendant was occupying the land as the tenant of Simeon W. Saylor at the time plaintiff’s immediate vendor obtained its title, and if so that deed was champertous and the court correctly submitted that issue to the jury. There was also evidence to sustain defendant’s contention that he was fraudulently induced to execute the leases relied on by plaintiff, and if that was true he never legally became the tenant of plaintiff or its immediate vendor as to the land in contest, and he was not estopped to deny its title, but on the contrary was compelled to attorn to and acknowledge the title of his true landlord, Simon W. Saylor. As we have seen, the second instruction properly -submitted those issues to the jury and it is not contended that the verdict determining them in favor of defendant was not supported by sufficient evidence.
The judgment is, therefore, affirmed.