170 Ky. 547 | Ky. Ct. App. | 1916
Opinion op the 'Court by
Affirming.
This action involves tbe title to 78 acres of a "125-acre tract of land on Maynard Fork of Wolf Creek, in Martin county, claimed to be owned by tbe appellee, H. W. MoCoy. Appellee claims to have derived title to tie 125 acres of land as follows: Tbe survey was pat
Desiring to restore the missing link in his chain of title to the 125-acre tract of land caused by the loss of the unrecorded deed by which James P. Kelley, alias Mullens, had conveyed the land to Thomas F. Riffe in 1880 or 1881, appellee brought this action in equity against James P. Mullens, Spencer Mullens, John P. Mullens and A. J. Mullens, the only heirs át law of James P. Kelley, alias Mullens, whose death had occurred before the institution of the action, to compel them to supply by a proper deed executed by them the
It appears from the averments of the answer of the appellant, Eumsey, that his claim of title asserted under the George W. Young patent was acquired in the following manner: One, Solomon Stratton, then the owner of the land embraced in the Young patent, executed to J. M. Eumsey & Company a mortgage thereon, which was later enforced in an action brought to recover the debt it was given to secure, and following its sale under a judgment enforcing the mortgage lien for the debt, the land was purchased by J. M. Eumsey & Company, to whom it was conveyed by a commissioner of the court, and later conveyed by deed from J. M.
Appellee’s amended, petition, which made George A. Ramsey a defendant to the action, and his reply to the answer of the latter, pleaded in avoidance of Ramsey’s claims of title, the seniority of the Farmer Leslie patent, denied that the Young’ patent embraces the land in controversy, and also pleaded that he, appellee, and his vendors had for more than fifteen years, in fact since 1880 or 1881, had and held the actual possession thereof to a well defined, marked boundary, adversely to- the appellánt, Rumsey, his vendors and all others, and that he and his vendors were in such actual, adverse possession thereof at the time the appellant Rumsey received the deed from Hart Newsome and that executed to him by J. M. Rumsey & Company, and that the deeds in question were, therefore, champertous and void.
Following the taking of proof and submission of the case the circuit court rendered judgment declaring appellee entitled to the land in controversy as a part of the 125 acres to which he claimed title by virtue of, the Farmer Leslie patent and the deeds from the immediate and remote vendees of the latter, and also the actual, adverse possession thereof for more than fifteen years by appellee and his vendors. The judgment also quieted his title to the land and directed that the loss of the deed from James P. Kelley, alias Mullens, to Thomas F. Riffe, be supplied by deed through the court’s commissioner, which was done accordingly. From that judgment this appeal is prosecuted.
Sections 3991-4000, inclusive, Kentucky Statutes, provide methods for supplying lost or destroyed records, such as books containing deeds, judgments or other instruments that have been recorded in an office as required by.law, or papers that are properly filed of record in any court of, the State; but we seem to be without a statute providing for the supplying of such instruments as do not constitute public records in the meaning of those sections. However, it has dong been the accepted doctrine- in this jurisdiction that a court, of -equity will entertain ,an action to afford relief by way of supplying an unrecorded lost deed or other instrument -and at the same time afford such further relief as maybe incidental to- the supplying qf,the.los,t instrument. Bolware v. Bolware, 1 Litt. 124; West v.
The doctrine in question is thus stated, in 25 Cyc.. 1609: - A
“It has long been well settled that courts of equity have jurisdiction to establish lost, instruments, and those courts are not deprived of jurisdiction by reason of the fact that courts of law have assumed, or by statute have been given, the same jurisdiction; and although a court of law would have afforded the same relief by admitting parol evidence of the contents of the lost instrument. It has also been held that where secondary evidence of the contents of the instrument is admitted in a court of law, a court of equity has no jurisdiction unless it is made to appear that the loss obstructs the right of plaintiff at law.or exposes him to undue peril in the future. The jurisdiction of equity arose from the inadequacy of the remedy at law, where- the rule was that in an action on a bond profert was necessary, and if therefore the instrument was lost the obligee was’ without remedy. * *
As to the extent of the relief to be afforded, in the same volume, on page 1610, it is- said:
“A court of equity may establish the possession of the person who claims title under a lost deed, or it may. enjoin an action at law on behalf of a defendant therein, and establish his lost deed, or establish the instrument or decree a re-execution of it, or enter an order divesting the title of the grantor and his- heirs and vesting it in the grantee and his heirs, or the heirs of the grantor of 'a lost deed may be compelled to execute a new one. The court may decree a re-execution of the lost instru-’ ment, -even though the instrument was lost by the gross negligence of the grantee; and, having jurisdiction of the person, it may decree the re-execution of a lost deed of lands lying in'another State. Where a court of equity has assumed jurisdiction because the instrument was lost, it will retain jurisdiction and adjudicate all the issues in the case. Where a person’s chain of title is incomplete because of the loss of a deed he has a ’complete remedy in equity in the right to bring an -action to establish the lost deed and remove cloud from title,*552 and lie is not obliged to resort to a court of law. A court of equity also has jurisdiction of an áction to recover for breaches of a lost bond, or to enforce the payment of a destroyed note, or upon a lost instrument where discovery is sought and also relief consequent upon the discovery. "Where a written contract to furnish articles of personal property is lost, equity may enforce payment for the property actually delivered; or where an instrument by which rent was provided for was lost, equity will permit the recovery of the rent secured thereby; and where the title to a portion of the property conveyed by a lost deed 'fails, the vendee may bring a suit in equity to recover the money to the extent of such failure.”
It seems to be a further well recognized rule that courts of equity will entertain jurisdiction to restore or supply lost instruments only where the execution and former existence of the instrument is clearly established. The burden of proof is on the person claiming on a lost instrument to establish its execution and contents; and where the lost instrument is not admitted, plaintiff must prove it. But the general rules of evidence apply in suits on or to establish lost instruments.
In the instant case we think the due execution and contents of the deed from James P. Kelley, alias Mullens, to Thomas F. Riffe, as well as its loss, were fairly established by appellee’s evidence appearing in the record, that of Thomas F. Riffe being definite not only as to the time and place of the execution of the deed, but also as to its contents. He also testified that the deed, though duly acknowledged, was not put to record, but was kept by him in a trunk, and that one day while he and his wife were away attending church, the trank was broken into and the deed stolen or destroyed. Dan Riffe, another witness introduced by appellee, testified that he saw the deed after its execution. A. W. McCoy testified that he also saw the deed, that its contents were as stated by Thomas F. Riffe, and that in a conversation he had with James P. Kelley, alias Mullens, the latter told him that he had conveyed the land in controversy by deed to Thomas P. Riffe. These witnesses, and Thomas U. Maynard, in addition testified that Thomas F. Riffe was living on the land as early as 1880.
It is patent from the record that the appellee’s title to the 125-aere tract of land, including the 78 acres-
In addition to what has been said in approval of the judgment of the circuit court, it may further be remarked that there was evidence conducing to prove that the land in controversy, if included in the .boundary of the Young patent, was embraced within a survey excluded or excepted from the land granted by the Young patent. But if this were not true, as the Young patent is junior in date to the Farmer Leslie patent, under which appellee claims and holds the land in controversy, and neither appellant nor his vendors ever had any possession in the lap of the patents, any claim of title that he might otherwise have asserted under the Young patent is inferior and must yield to the title of appellee derived from the Farmer Leslie senior patent. Moreover, if this were not true, appellee’s actual, adverse possession of the land in controversy at the time appellant obtained the deed from J. M. Rumsey & Company
As the rights of the parties were properly determined.by the judgment of the circuit court, it must and is hereby .affirmed.