113 Ky. 922 | Ky. Ct. App. | 1902
•Opinion ok the court by
Aeeirming.
This suit was brought in equity by appellant against appellees, Simpson Crabtree and J. M. Sullivan, in 1897, to recover damages' for certain alleged trespasses upon a boundary of land of about 6,300 acres in Lee county, to which appellant asserted title, and of which it claimed to be in tire possession. Attachments were sued out by appellant against appellees’ property, for the value of the timber cut by appellees. The attachments were levied on a sawmill of appellee Sullivan, and the mill, some lumber, and a num
The John Carnan patent for 29,823 acres, issued by the Commonwealth of Virginia January 4, 1786, on a survey dated May 3, 178-1, covers the, land. It is the effort and claim of appellant to connect title Avith it. Appellees also claim under the same patent. Their boundary laps on that claimed by appellant to the, extent of 393 acres. The particular trespasses sued for included the cutting and deporting of timber from the premises in dispute, and the building and using a tram railway across them. The land, 'excepting about 75 or 100 acres, Avas uninclosed forest. Both appellant and appellee Crabtree were in the actual possession of some, parts of their respective claims, asserting title to. the
It is the contention of appellant that its north line, when run correctly (that is, the call for the two hickories and the two sugar trees, N., 75 degrees E., crossing Sodom and Gomorrah and Cave’s fork of Miller’s creek, \nd the Main Big Sinking), is correctly shown by the line upon the plat beginning at 4, passing 28, 9, 10, and ending at 12. On the other hand, appellees claim that the correct running of this line should begin it at a point northeast of figure 27, following the line passing 27, 24, to 14. The land in controversy in this case is indicated by the boundary enclosed by the dotted line embraced by the figures 15, 16, 17, 11, 9, 25, and 18. It will thus he seen that, if the line should be run from 4 to 12, it would include about 393 acres of the 505 acres 4 claimed by appellees, while if it should be run from 27 to 14, and thence S., 9 E., to 13, it would not touch the land in controversy, as appellant’s lands lie south of the X., 75 E., line. In running the line from 4 to 12, the course X., 75 E., was not followed, but instead the line was run X., 84 E. In running the other line, it is not ran either X., 75 E., but is ran S., 85 E. It will thus be seen that the course is sacrificed by each of these, contentions, and as the distance is not named in the deed, the controlling question must be the natural objects called for. The branch marked “Buckner or Sodom Hollow” is the one shown by the record to have been in early times called “Sodom and Gomorrah one fork of it being called “Sodom,” and the other “Gomorrah,” and below the junction being called “Sodom and Gomorrah.” Tn running the line according to appellant's contention, the corner called for is not taken as the beginning corner, but they began at a point some poles north of the point called for as the beginning. The line
The testimony of one of the surveyors is that he did not cross either Sodom or Gomorrah or Cave’s fork in running the disputed line as claimed by appellant. If the line should be run as contended by appellees, it would cross Sodom and Gomorrah and Big Sinking, thus fulfilling at least two of the conditions of the call, whereas, if run by
In 1S81 a conveyance was made by certain parties to C. D. Chenault and others, in which the grantor purported to convey the title d'erived from Duokham and Meadows, above referred to. Some time thereafter (how soon is not shown) Chenault and others caused this land to be surveyed by E. P. Benton, a surveyor formerly of.Estill county. It seems that Benton was the, first person to run the line as now contended for by appellant, and he marked a corner at ■figure 12 on the plat above as the end of that line. At that time Chenault had tenants in possession of their boundary —Blackwell, and afterwards his widow and others — but all living; on the west of the line shown in the plat as the Flahaven line, and of course on the west of the N., 9 E., line. The evidence is not absolutely clear as to the extent of the claim of these tenants, but it was sufficient to have justified the conclusion that they intended to hold possession to the extent of tire boundaries embraced by the deeds of their landlords, and as contended for by the landlords. This would have put appellant’s vendor, Chenault, and others, in possession of the land in controversy up to the line from 4 to 12, unless appellee Crabtree was in possession of the conflicting, territory. This brings us to a consideration of appellees’ title and possession.
In 1869 David Prvse sold to appellee Simpson Crabtree a boundary of land within the Carnan patent, and executed a bond for tie. Shortly, afterwards appellee Crabtree moved upon the land embraced by this bond, and set an improvement. His dwelling is shown on the plat. He cleared some 50 or 75 acres directly thereafter, and has continued .to enlarge his clearing until it now embraces about 100 acres. He continued to hold and claim under
Appellee’s derivation of title through David Pryse was shown thus: Cl) The patent from the Commonwealth of Virginia to John Carnan for 29,823 acres. (2) A deed from John Carnan to Thomas Flahaven, dated 10th of May, 1793, conveying 17,823 acres, or “the. eastermost part of the 29,-823-acre trad.” This line was established and shown by the testimony of witnesses who proved its existence by reputation as an ancient line, which evidence was competent for that purpose. Smith v. Prewit, 2 A. K. Marsh., 157; Same v. Nowells, 2 Litt., 160; Same v. Shackelford, 9 Dana, 468; Beaty v. Hudson, Id., 322. The western line of this Flahaven tract, by the conveyance just mentioned, is the line shown on the plat from 5 to 22; the -deed embracing all the lands shown on the plat east of that line. (3) Thomas Flahaven on July 4, 1806, mortgaged this land to Michael Fishell and A. Gallatin, of Lexington, to secure 770 Spanish milled dollars loaned. In a suit in the Estill circuit court to foreclose this mortgage, a commissioner’s deed, as a result of a decretal sale in that action, was made on the 21st of October, 1827, by Robert Clark, commission
The circuit court refused to -allow appellant’s deeds to go to the jury as evidence of title, restricting their use to showing extent of claims and possession. This is objected to by appellant, and alleged as an error. We are of opinion that this ruling was right. If appellant had connected with th'e Commonwealth, or the origin of title to the land, it would have been proper to have submitted the mesne and all its conveyances- as evidence of its title, but without such connection it must depend fpp title, not upon the vir
In addition to the 393 acres claimed by appellee Crab-tree, there was also in question the tract embraced in the triangle formed by the figures 9, 10 and 11, and being 27 acres, from which some of the timber in controversy had been cut by appellee Sullivan. It is earnestly insisted for appellant that it was at least 'entitled to recover for this limber, as appellees had shown no title or claim thereto. It is sufficient response to this to say that, in view of the conclusion to which we have arrived concerning appellant’s title, it did not own the 27 acres, and was not in possession of it. For whatever may be the state of its title with respect to the lands embraced by the lines of the Meadows deed, as indicated by this opinion, we find from the record that those claiming under the Flahaven conveyance and 'under Ilaggin’s heirs have had tenants in possession of some parts of that boundary for such a length of time as will have prevented the possession of appellant’s tenants' since the Chenault deed from including the 27 acres. The possession of any pari of the tract under the better title extends to the whole boundary and claim therein, except to such part as may be in the adverse, actual possession of another. This adverse actual possession will not be construed to'attach to the claim of tenancy under the junior holding, where it is not inclosed, and where the entry under the junior grant is not within the conflict. Layson v. Galloway, 4 Bibb, 100; Lee v. McDaniel, 1 A. K., Marsh, 234; Shrieve v. Summers, 1 Dana, 239; McGowan v. Crooks, 5 Dana, 69; Gregory’s Heirs v. Ford, 5 B. Mon., 478; Jones v. McCauley’s Heirs. 2 Duv., 14.
' Tire answer of appellees in this case, as has been stated, justified their cutting of the timber and the building and
Further complaint is made by appellant that the court di- ■ reeted a trial by jury, instead of trying the case in equity. The only matter presented in issue by the pleadings that was cognizable in equity under any circumstances; was as to the mistake in one of the lines of the deed from Prvse to appellee Crabtree. The deed, as it appeared, covered the 27 acres above referred to. An issue was made as to whether this had not been changed by fraud or mistake. Before referring the case to the jury, the court, from the
• Another contention made by appellant is that it and appellees both claim title through one common grantor, to-wit, Thomas Duckham, and that therefore it was not incumbent upon appellant to trace its title further than to the said Duckham. We concede that this! is a general rule. We are of opinion, .however, that it can not be applied in this case for the following reasons: If Duckham owned any title to the land when he conveyed to Drake, he parted with it in May, 1819. Afterwards he purchased another title, subject to the lien of its vendor for the purchase money, and that occurrence was this: Flahaven had mortgaged the land, as 1ms been stated, to Fishell and Gallatin. Fishell foreclosed the mortgage in Estill, and bought in the land. It was shown in the suit in Fayedte that in fact Mary Gilman was the joint owner with Fishell in that enterprise,- and that Fishell had in reality bought for their joint account, and that she was entitled to a half of the land so bought. Fishell sold his interest to Haggin, and Mary Gilman sold her moiety to Duckham, for which Duck-ham agreed to pay a certain sum, “to be paid in stone coal, and in cedar, yellow pine, chestnut and walnut shingles.” Duckham failed to pay, and in the suit in Montgomery county by Mary Gilman’s executor, Peck, Duckham was made a party, and the purchase-money lien of Mrs. Gilman was enforced. At that decretal sale Judge Breck became the purchaser. Breck therefore derived title not through1 Duc-klmm, properly speaking, but through Mrs. Gilman, for Duck-
Numerous objections are made to the admission of evidence at the trial. None of them are serious enough, however, to note, further than to say that in our opinion the circuit court ruled correctly thereon. We will notice the following particularly: The deed from James M. Barclay, trustee, to Beatty, Pryse and Jones was signed, “James M. Barclay.” The certificate of acknowledgment is: “State of Kentucky, Fayette County — set.: I, Sanders D. Bruce, clerk- of the county court of the aforesaid, do certify that this deed from James M. Barclay to Samuel Beatty and others was this day produced to me in my office by the said John L. Barclay to be his act and deed, and ordered to be certified, which is hereby done. Given under my hand this 7th day of October, 1S5S. [Signed] Sanders D. Bruce, C. F. C. C., by Hauflet Richardson, D. C. C., F. C. C.” All-language in legal documents! must be given some meaning in' law, where it is possible to do so. The act of this offi-cer would be meaningless, as would all of his words employed in this certificate, unless we should be able to gather from it the following facts: It was the purpose of the
The will of Price Pryse bears date July 28, 1804. The clerk of the county court of Owsley county, which the testator states in his will was the county of his residence, certifies that the copy of the will is a true copy, as is “certified of record, which appears from the records of this office.” The certificate-is as follows: “State of Kentucky, County of Owsley- — set.; I, E. Winn, clerk of the county court of the county aforesaid, i[o certify that the foregoing writing, the last will and testament of Price Pryse, deceased, was produced and handwriting proven by A. B. McGuire and J. B. Phillips at the October term of' the Owsley county court, for probate. After lying over one month for exceptions, it was ordered of record. Whereupon said will and this certificate are admitted to record in- my 'Office.” The objections to this form of certificate are that R does not show in whose handwriting the instrument was, and that there must have been a judgment of the county court of Owsley county admitting the paper to
The instructions of the court fairly presented the law to the jury. We perceive no error in the trial in the circuit court prejudicial to the substantial rights of appellant. The judgment is affirmed.