206 Ky. 72 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
This is an appeal from a judgment quieting the title of Elihu Moseley to a tract of land in Leslie county.
On the other hand, appellants have shown title from John Bowlin, to whom a one hundred acre patent, No. 23549, was issued on a survey dated February 7, 1839, and they and those through whom they claim have been in possession of the patented boundary for more than forty years.
There is a conflict between appellant’s deed and appellee’s deed, and the only controversy is over the land common to -both.
■It is conceded that neither appellee, nor those through whom he claims, ever made an actual entry within the lap until a short time before this action was instituted.
The chancellor found for appellee on the theory that neither he nor Lucy Bowlin showed any title to any portion of the land, and, that being true, his entry upon the land, though outside of the lap, was tortious as to every part thereof, and had the effect of reducing to his possession the entire tract described in the deed. For aught that appears in the record Lucy Bowlin, who actually lived on the land outside of the lap, may have acquired
‘ ‘ One having a color of title may have an actual possession, by construction, to parts of a tract of land by entering thereon with the intention to take and hold possession to the extent of the boundaries of the deed, patent, or other instrument which gives color of title. He is then in the actual possession of the portion of the premises which he occupies and in the actual possession, by construction, of the remainder of the tract, where same is not in the possession of another.”
For the purposes of this case it is sufficient to say that at the time the Moseleys entered under their deed, appellant’s predecessors in title were in possession of the land covered by their patent from the Commonwealth. That being true, the entry of the Moseleys outside the lap did not give them possession of any of the land within the lap.
But, it is sought to uphold the judgment on the ground that the facts are such as to justify the presumption of a lost grant. The rule is that a long continued possession of real estate, accompanied by the usual acts of ownership, justifies the presumption of a lost grant of the property to the occupant. United States v. Chavez, 175 U. S. 509, 44 L. Ed. 255. “Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of, an existing adverse title in, the party in possession.” Ricard v. Williams, 7 Wheat. (U. S.) 59, 5 L. Ed. 398. While the presumption is less readily indulged against the state than against an individual, Wilson v. Stoner, 9 Serg. &c. R. (Pa.) 39, 11 Am. Dec. 664, the rule has been applied after a very long period of peaceable pos
It follows that appellant’s title to the land in controversy should have been quieted.
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.