207 Ky. 142 | Ky. Ct. App. | 1925
Opinion op the Court by
Affirming.
Elizabeth. Hatfield sued to quiet her title to twenty acres of land adjoining the city of Corbin. From a judgment in her favor the defendant, George D. Lovill, appeals. Both claim title through Boseoe Hatfield, who was a son of ¥m. Hatfield, deceased.
In the division of the real estate of ¥m. Hatfield, among his heirs, the master commissioner, E. G. Massingale, in December, 1910, conveyed several tracts to Boseoe Hatfield, two of which are in Knox county, the fifth tract being thus described:
“Beginning at a stone at the corner of the fence known as the Welsh tract; thence N. 18 W. 44 poles to a stone at the road, comer to Elizabeth Beynolds' fence; thence S. 85% E. 50 poles to a white oak and black gum; thence N. 78 E. 30 poles to a gum and white oak; thence S. 18 E. 68 poles to a dogwood and maple; thence S. 88 W. 75 poles to the beginning, containing 24 acres, 3 roods and 35 poles.”
On July 10th, 1913, in consideration of a house and lot in Corbin conveyed to him by Bena Lovill, Boseoe
‘1A certain tract of land lying and being in Knox county, Ky., and being all the tract of land conveyed to the party of the first part by E. O. Massingale, commissioner of Whitley county, by deed bearing date December 24, 1910, which is duly recorded in deed book 64, at page 377, county clerk’s office, and bounded and described as follows:
‘‘Beginning at a stone at the Barbourville road the comer to Elizabeth Reynolds’ fence southwardly — feet to a stone in line with said Barbourville road; eastwardly — feet to the comer at the eastward line of the original tract; thence northwardly with said back line — feet to a gum and white oak, at the corner; thence westwardly with the line of the original tract — feet to a beech, corner to Elizabeth Reynolds’ land, southwardly with her line — feet to white oak and black gum; thence westwardly with her line — feet to the beginning. ”
On the same day Rena Lovill conveyed this boundary to her son, J. H. Lovill, who had conducted all the negotiations. Plaintiff claims that a stake was set at the second corner and the distances left blank in the deed, with the understanding that the lot should be surveyed and the distance ascertained and inserted. That later this was attempted, but the second line ran quite close to the rear corner of Reynolds’ line; that J. H. Lovill claimed that this was to be parallel with the Reynolds line, and a controversy arose.
Thereupon Roscoe Hatfield erected a fence along the line as claimed by him, cutting off four acres, and a fraction to Lovill and retaining the twenty acres now in dispute. Possession of this tract has since been retained by him and his vendee.
J. H. Lovill erected a residence on his part and he and his mother lived thereon. Both of them are now dead. His father, J. S. Lovill, inherited from him and has since died, leaving as his only heir the appellant, George D. Lovill.
' In October, 1913, Roscoe Hatfield sold and conveyed a lot on the east end of this tract fronting on the Barbourville road to J. G. McCreary. In July, 1914, he con
The conflicting claims are easily understood by a reference to the accompanying diagram.
There are six calls in each survey, the general direction being identical. The confusion arises from the fact that in the Lovill deed the courses and distances are not set out, and the second and third lines do not call for natural objects. It transpires that the calls can be applied to the entire boundary or to the four acres only.
Thus the original boundary begins at a stone comer to the Welsh land (.1); thence N. 18 W. 44 poles to a stone at the road, corner to Elizabeth Reynolds’ fence (2); thence S-. 85 E. 50 poles to a white oak and black gum (3); thence N. 27 W. 29 poles to a beech (4); thence JST. 78 E. 30 poles to a gum and white oaJk (5); thence S. 18
The deed from Hatfield to Lovill reverses these calls. It begins at a stone at the Barbourville road (2), corner to Elizabeth Reynolds, and, as claimed by plaintiff, runs southwardly — feet to a stone in line of said Barbour-ville road (b), as 'claimed by plaintiff; thence eastwardly — feet to a stone in an established line of the original tract (oj, as claimed by plaintiff; thence northwardly with said back line to a white oak and gum at comer (5); thence westwardly with the line of the original tract — feet to a beech comer to Elizabeth Reynolds ’ land (4); thence southwardly with her line — feet to a white oak and black gum (3); thence westwardly with her line —■ feet to the beginning (2); all except the first and second calls being identical with the first deed.
The dotted line from “B” to “X” runs parallel ■with the Reynolds fence, being the one that plaintiff’s testimony shows was claimed by J. H. Lovill. It is within plaintiff’s inclosure.
It is clear that under this description the distance in the first call could be extended to the stone at Welsh’s corner; and the second call would then be from that point to the dogwood and maple, and from thence on around the original boundary. Also, as stated above, the Lovill deed recites “and being all the same tract of land conveyed to the party of the first part by E. G-. Massingale, commissioner of Whitley county, by deed bearing date .December 24, 1910, and this would indicate the entire tract conveyed.
But, on the other hand, the calls in the deed are equally consistent with plaintiff’s contention. If the parties had intended to include the entire tract it is singular that they gave the calls and general directions as in the old deed without giving the distances or calling for the natural objects of the corners, a circumstance indicating that they did not intend to call for those points.
If the matter had stopped there, under the familiar rule that the deed should be construed most strongly against the grantor, the defendant would prevail, but with ■six of the lines of the deed left blank, and it thereby being rendered equally applicable to different theories of construction, it would seem that parol evidence is proper to explain the ambiguity thus created, that the court may learn the true intention of the parties.
It must be remembered that J. H. Lovill conducted the negotiations with Roscoe Hatfield, and though the land was first conveyed to his mother, she conveyed it to him on the same day, and that he was the owner at the time of the admissions as to title, so that whether he originally acted as agent of his mother, or acted on his own behalf, under the circumstances such admission, if not otherwise objectionable, were competent against him and those claiming under him.
About the time the line was being run, both he and Roscoe Hatfield consulted an attorney in a friendly way, without either employing him. At that time there was no contention as to the second comer in Lovill’s deed being the point now claimed by plaintiff, but Hatfield was claiming that the second call was at right angles with the Barbourville road, while Lovill claimed that it should run parallel with the Elizabeth Reynolds line, and did not claim anything south of the line mnning parallel with the Reynolds fence. Later he told the attorney he thought he could claim it all under the deed. In the light of this evidence we conclude that the construction claimed by plaintiff is correct.
We do not think the statute of limitation can be invoked as the matter involved is simply the construction of the deed. Upon original submission a decree was rendered in favor of Lovill, but the order was not signed. While the record was in that condition a motion was made to set aside the judgment and submission and permit additional proof to be taken. An order Avas entered setting aside the former order of submission and permitting additional proof to be taken. No specific mention was made therein of the unsigned decree, but it was ignored thereafter, other proof taken and final judgment rendered for plaintiff. In all these proceedings the unsigned decree was ignored and, in our opinion, it was in •effect set aside.
Perceiving no error in the record the judgment is .affirmed.
