181 Ky. 163 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
The question, involved on this appeal is the title to a tract of land containing 172 acres, lying in Estill county, Kentucky. It arises in this way; Prior to his death Joel McKinney was the owner of a large body of land in that county, a portion of which extended into Powell county, which was known and had been for more than a half century, as the Cottage Furnace tract. That body of land was a complete circle with a diameter of six miles, and in the center of which was a furnace stack which had been constructed many years ago and where a furnace for the manufacture of pig iron had been operated up until some years since the Civil War. Since all the parties
Joel McKinney left surviving him many heirs, some near and others remote, and on September 25, 1901, all of his heirs except six brought suit in the Estill circuit court against those six, for the purpose of selling the lands of Joel McKinney, which were inherited by the parties to that suit for division among themselves according to their respective shares. Some of the defendants were infants and others non-residents, but they were properly brought before the court and the case was practiced strictly according to the provisions of law governing such cases, and there is no complaint but that the proceedings in that ease throughout were and are legal and valid. In addition to the Cottage Furnace tract, the ancestor, Joel McKinney, owned other lands in other counties of this Commonwealth, and they were also described and sought tó be sold and were sold in the proceedings mentioned. Some of the heirs disputed the indivisibility of the land and contended that it could be divided in hind, and upon this issue proof was taken and the court adjudged that the land was indivisible and ordered it sold according to the prayer of the petition. The judgment, in describing and referring to the Cottage Furnace tract, said: “He (Joel McKinney) was also the owner and in the possession at the time of his death of the following described tracts of land in Estill and Powell counties, but lying mostly in Estill; . . . said lands are known as the Cottage Furnace tracts, and is bounded as follows, to-wit. ’ ’ Then follows a description of the circular Cottage Furnace tract, with a general exclusion of prior patents and the
“"We, the undersigned, disinterested housekeepers of Estill county, Kentucky, and not of kin to the parties to this action, having been selected and duly sworn by R. W. Smith, master commissioner of the Estill circuit court, to appraise the tract of land ordered to be sold by judgment herein of the Estill circuit court, at the December term, 1906, containing for whole tract, do value said land at $4,000.00 for whole tract. Witness our hands this 11th day of February, 1907, J. M. W. Covey, Isom Ballard. ’ ’
The deed of the master commissioner to the purchaser, Mapel, followed the description of the judgment, including the modifying clause, and he took possession of the land. Within a comparatively short time thereafter, not later than the year 1909, he cut all of the timber from the 172 acres involved in this suit, and during that time, or directly afterward, he put some tenants upon it. Prior to that time he had obtained a surveyor to survey all of the land within the boundaries of the Cottage Furnace tract which were included in the judgment, as well as in his deed from the master commissioner, and in that survey was one made of the tract now in question. It lies outside of the boundary made by the surveyor selected by plaintiffs and their attorneys but who, as we have seen, was not appointed by the court to make the survey, and there is between the boundary so described by that surveyor and the tract in question a tract of land containing about 1,000 acres, and which is one of the exclusions from the original description of the Cottage Furnace tract.
The 172-acre tract of land is situated on Cow creek, and is between a half mile and a mile from the boundary
In the meantime plaintiff and others had purchased the fee to the 172 acres from-S. M. Mapel, and on December 14, 1916, he filed this suit against all the heirs of Joel McKinney for the purpose of quieting his title to and leasehold rights in the 172-acre tract in question. He bottomed his right for the. relief sought upon the ground that the judgment under which his remote lessor, Mapel, bought the Cottage Furnace tract, and the deed which he received from the commissioner covered and included the tract in question, and also upon the fact that he was the owner of the Ice lease. He furthermore insisted that defendants were estopped by their silence to assert title as against him, since he had openly and notoriously expended upon the land in the way of oil development a sum of money exceeding $100,000.00. He also insisted that defendants’ claim, if they had any, was stale, and that they were guilty of such laches as would prevent them from asserting any rights which they might have to the tract in question. .
Appropriate pleadings made .up the issues, but before submission of the cause the heirs of one Thomas McKinney filed their intervening pleading asserting in themselves title to the tract of land in question upon the ground that years before the death of Joel McKinney he had executed some kind of writing under which one Richard McKinney was to take charge of and rear Thomas McKinney, an illegitimate child of Joel McKinney, in consideration that Richard McKinney should have for his services the tract of land in question until Thomas became twenty-one years of age, after which time the land should belong to the latter, and that pursuant to that writing Richard McKinney did take charge of the illegitimate child, as well as of the land, and that it had been held by him, and after that by Thomas Me-Kinney or his heirs adversely to Joel McKinney and all others under a claim of right, and that petitioners were the rightful owners of the land, their ancestor, Thomas McKinney, having died intestate. This claim was contested by appropriate pleadings, and upon final submission of the case judgment was rendered upholding the
At the beginning it will be seen that the first vital question presented is whether the judgment under which the Cottage Furnace tract of land was sold and the commissioner’s deed to Mapel executed pursuant thereto in the light of and with the aid of long established rules for their interpretation and construction, includes the tract in controversy, for if it should be found, with the assistance of such rules, that they did include that tract, we will at once be relieved of considering the other more or less intricate and lengthily discussed questions of champerty, estoppel and laches. It is of course insisted by counsel for plaintiff that the land in question was included in the description in the judgment under which the Cottage Furnáce lands were sold, while counsel for defendants and the heirs of Joel McKinney contend to the contrary. Their contention is based upon the general rule that in the description of lands, whether contained in a judgment or writing inter partes, the particular description will prevail over a general one when there is a conflict between them, and that the specific description in the judgment selling the Cottage Furnace tract as made by the surveyor does not include the land in question, although the clause added to the judgment and before the sale—“and this boundary is to include all the Cottage Furnace lands belonging to Joel McKinney’s heirs”—being a general description, might include it, still it could not prevail under the rule invoked as against the particular description which does not include the tract in question.
In support of their contention counsel for appellants cite many authorities, among which are Bain v. Tye, 160 Ky., 412; Howard v. Cornett, 151 Ky. 125; Magowan v. Branham, 95 Ky. 581; Wilkins, v. Norman, 11 Amer. St. Rep. 767, and notes thereto; Heaton v. Hodges, 30 Amer. Dec. 731, and notes thereto, and 13 Cyc. 631. There would have been no trouble in lengthening the list almost without limit, since we presume that no court and no text-writer disputes the general rule, which indeed counsel for appellee admit. But a rule of construction
' Another rule which tiie court may invoke in an effort to ascertain the intention of the parties when called upon to construe doubtful language in the description of the property conveyed by a deed is that “The construction put on a deed by the parties in locating the premises may be resorted to in order to determine their intention when the language of the description renders the location of the land doubtful.” 8 R. C. L. 1075, and cases in the notes.
This court, in the Bain case, supra, in laying down the general rules which should govern the court in such cases as this,, in arriving at the intention of the parties as the primary object to be attained, said:
“The rule for determining what property has been conveyed by a deed is formulated as follows, in 13 Cyc. 626:
“ ‘The intention of the parties as apparent in a deed should generally control in determining- the property conveyed thereby. But if the intent is not apparent from the deed resort may be had to the general rules of construction.
“ ‘Where the words used in the description in a deed are uncertain or ambiguous and the parties have by their acts given a practical construction thereto the construction so put upon the deed by them may be resorted to,' to aid in ascertaining their intention.
“ ‘The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose and should be given a meaning that will aid the description. Every part of a deed ought if possible, to take effect and every word to operate.’ ”
“Where the description of the property intended to be conveyed is ambiguous, the identity of such property must be gathered from the intention of the parties, as shown by the instrument itself and the accompanying circumstances, such as those surrounding and connected with the parties and-the land, at the time. Bowe v. Richmond, 33 Ky. Law Rep. 173, 109 S. W. 359; Clark v. Northern Coal Co., 33 Ky. Law Rep. 1047, 112 S. W. 629; Tanner v. Ellis, 127 S. W. 995; Crews v. Glasscock, 32 Ky. Law Rep. 913, 107 S. W. 237; Jones v. American Association, 120 Ky. 413; Hall v. Wright, 121 Ky. 16; Virginia Iron, Coal & Coke Co. v. Dye, 146 Ky. 519.”
It would serve no useful purpose to make other illustrative quotations from opinions or from text-writers, since there is no exception to the ride as announced in the Bain case. The trouble with the contention of counsel for appellants, as we see it, is that he seeks to apply the general rule giving priority to a particular description over a general one, regardless of the intention of the parties to be gathered from the entire instrument, and disregarding the facts and circumstances surrounding the parties at the time, to which, as we have seen, the court may look for the purpose of ascertaining their intention. In cases where there is nothing throwing light upon the intention of the parties, and where it must be gathered solely from the description itself, the particular description should no doubt prevail over a general one. But if with the application of the rules alluded to, it should be made manifest that the intention of the parties was that the general description should prevail, then it is the duty of the courts when called upon to give a construction to adopt the one carrying with it the intention of the parties. In this case the master commissioner’s deed, under which Mapel purchased the land at the decretal sale, refers, as is usual in such deeds, to the record of the case in which the judgment was rendered, and when we look to that we learn that it was the intention of the parties to that suit, and who are the appellants here, to sell all the land that Joel McKinney owned at the time of his death.
The intention of the suit between the heirs of Joel McKinney was to sell and divide the proceeds of all of Joel McKinney’s land. In furtherance of this purpose many tracts in different counties were described and sold. There could have been no object or purpose in leaving out a comparatively small tract to be jointly owned by the twenty odd heirs which Joel McKinney left, and who were scattered in different states of the union. As further proof of such being the intention of the parties, their conduct since the sale conclusively shows it. None of the heirs ever, by word, act or deed, even so much as intimated that they owned any land in the Cottage Furnace tract until more than nine years' after the sale, and then- only after the small parcel here involved was, by the expenditure of a large sum of money, proven to be valuable.
Much discussion is indulged in by learned counsel for appellants to show' that it is incompetent in a case like this to show by parol proof what may have been the secret intention of the parties, but we deem it unnecessary to enter into a discussion of that phase of the case, since no such proof is necessary in order to determine what we conceive to be the indisputable intention of the parties to the McKinney suit, in which the sale was made to Mapel. Neither is it necessary to make reference to or discuss the points argued concerning the Ice lease, and the same is true with reference to the questions of estoppel and laches urged and relied upon by appellee.
This leaves for determination the claim presented by the heirs of Thomas McKinney, But little need be said concerning it. In fact it is not seriously insisted
It results, therefore, that the judgment appealed from is correct, and it is affirmed.