151 Ky. 360 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
John Rutter ford owned a large "body of land in Pike County, Kentucky, on Pigeon Roost Fork of Pond Creek. He bad several children. As each of these children became of age, or was married, he settled them on different portions of his farm. Alex Murphy married Polly Rutherford, daughter of John Rutherford, in the year 1878. Nine children were born to them. Soon after their marriag’e, Alex Murphy and his wife, Polly, settled on the tract in controversy, which consists of about 202 acres of land. In the year 1903 John Rutherford gave to W. J. Newingham, Charles S. Thorn and A. J. King an option on the coal lying on his farm, including the land in controversy. He executed a deed on August 12th to the persons holding the option. In October of the same year, the vendees in the deed sold and conveyed the coal to the Williamson Coal Company. Alleging that the land was given equally to Alex Murphy and Polly Murphy by John Rutherford, that Polly Murphy died in the year 1893, and her interest descended to their children, subject to Alex Murphy’s curtesy therein, and that Alex Murphy and his children were the joint owners of the tract in controversy, this action was brought against
The evidence for plaintiffs shows that soon after the marriage of Alex and Polly Murphy, in the year 1878, they settled on the land in dispute. John Rutherford marked the lines for them. In 1884, John Rutherford gave the lands to Alex and Polly Murphy. Since that time they had paid the taxes on the land. After taking possession of the land, they built a dwelling house, which they added to from time to time. They also built tenant houses, barns and outhouses. They planted a fruit orchard and cleared and fenced about 75 acres of land. They also cut and sold timber from the land in quantities for saw log purposes. These acts of possession were known to John Rutherford. John Rutherford had other children, to whom he deeded the lands upon which they had settled. When Alex and Polly Murphy settled on the land, he stated that he intended to give it to them. Subsequently he pointed out their lines, and said the land was Alex’s and Polly’s, and not his. 'The foregoing facts appear from the testimony of Alex Murphy and other witnesses. On cross-examination, Alex Murphy stated that he knew that John Rutherford had optioned and sold the land in question to Newingham and others in 1903, and understood that he got $10 per acre for it. He saw Dr. Deaton make a survey of the land at that time. Upon being asked: “Did you object to Mr. Rutherford, or make any complaint to Mr. Rutherford’s selling this land to Mr. Newingham?” he answered: “Yes, sir, I told him to make a reserve of the property around my house and property, that is, of the surface. Mr. Rutherford told me he intended to put me on level land.” On redirect examination, he was asked: “What caused you to ask Mr. Rutherford to reserve you a boundary around your house in the sale to defendant?” He answered: “Because he tried to make me believe that I couldn’t hold the land without a deed, and I was ignorant of the law. I claimed the land then as I do now.”
Certain of the defendants also testified that they had no notice or knowledge of plaintiffs’ claim; that the title to the land was in John Rutherford.
A number of Alex Murphy’s children testified to their acts of possession, and to the fact that they never made the trade with W. A. Rutherford for the 25 acres of land, and did not know what the $50 apiece was paid to them for. The husband of ■ one of the girls testified that the 25-acre tract conveyed by W. A. Rutherford was worth only about $300.
It is well'settled that where there is an unconditional parol gift of a well-defined body of land, accompanied by an actual possession for 15 years or over, with claim of ownership, such possession ripens into title, and the donor cannot recover the land. If, however, one enters upon land by the owner’s permission, expecting that the owner will give it to him, then such possession is not a hostile holding. Commonwealth v. Gibson, 85 Ky., 666; Thompson v. Thompson, 93 Ky., 435; Owsley v. Owsley, 117 Ky., 47. The main question in this case is: Was there an unconditional parol gift of the land, or did Alex Murphy and his wife and children hold merely by permission of John Rutherford? Alex Murphy does not contend that John Rutherford gave him and his wife the lands at the time they took possession. He does say, however, that John Rutherford marked out the boundary, and that in the year 1884 John Rutherford made a gift of the lands to him and his wife. If the gift was made at that time, then the holding of the plaintiffs was adverse from that moment, and having held the land for more than 15 years, their possession ripened into title. It appears that prior to his wife’s death, Alex Murphy controlled the lands, and that after his wife’s death he controlled and managed the lands for the benefit of his children. Alex Murphy himself testifies that at the time of the sale of the coal to defendants he told John Rutherford to make a reserve of the property around his house, that is, of the surface, and that Mr. Rutherford told him he intended to put him on level ground. It is true that he afterwards stated that the reason he asked Mr. Rutherford to reserve the boundary around the house was that Mr. Rutherford tried to make him believe that he could not hold the land without a deed; that he was ignorant of the law, and claimed the land then as he
The evidence upon the question of a parol gift being equiponderant, and the circumstances and relations of the parties being such as to indicate a permissive rather than an adverse holding, we see no reason to disturb the finding of the chancellor.
Judgment affirmed.