106 S.W.2d 95 | Ky. Ct. App. | 1937
Reversing.
Alleging that they were the owners, and entitled to the possession of a 125-acre tract of land located on the waters of Laurel fork of Rockcastle River, and described in the petition, and that the defendants were wrongfully keeping them out of possession of the land, Eller Bond, Robert Price, Dora Price, and Dewey Price brought suit in equity against Adeline Madden, Abe Madden, and Neely Adkins to quiet their title, and recover damages in the sum of $100 for wrongful detention of the land. After her demurrer to the petition had been overruled, Adeline Madden filed an answer and counterclaim denying the title of plaintiffs, and pleading that she was the owner of the land, and asking that her title be quieted. On final hearing the chancellor granted the relief prayed, and Adeline Madden and Neely Adkins have appealed.
As the action is one to quiet title, appellee's failure to allege and prove possession would have been fatal to the maintenance of the action if appellants had merely denied their title, Fields v. Couch,
Where, in an action to quiet title, the defendant files a counterclaim alleging ownership, and asking that his title be quieted, he only waives the question of possession, and plaintiffs have the burden of proving their title. Southern Oil Co. v. Holman,
We are asked, if the case must be reversed, to reverse it for a new trial, but it is not perceived how that may be done. The case was brought in equity, the proof was taken by depositions, and by agreement of the parties the case was submitted to the court for opinion and judgment. In the circumstances, it does not come within any of the exceptions to the rule that, in equity cases, final judgment will be directed.
Wherefore, the judgment is reversed and cause remanded with directions to dismiss the petition.