204 Ky. 774 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
This action was instituted December 16, 1915, by the appellants against the appellees, Thomas Combs, Eliza
In their petition they alleged that T. C. Napier, their ancestor, died intestate in March, 1901, survived by eleven children or their descendants; that at the time- of his death he was seized and possessed of a certain described tract of land in-Perry county, Kentucky, nine-elevenths of which they had inherited from him; that the appellee, Elizabeth Napier Combs, was a daughter of T. Gr. Napier, and as such inherited a one-eleventh interest in the land, and that her husband, appellee, Thomas Combs, owned one-eleventh by purchase from one of the heirs, and that they had sold and conveyed to appellee, J. B. Hoge, the mineral rights under their two-elevenths. Appellants prayed that the land be partitioned into eleven parts, that nine parts be allotted to them, two to the Combs and the mineral rights thereunder to appellee Hoge. ■
Appellees filed a joint- answer denying the allegations of the petition and thus raised the controlling question in this case, which is, was T. Gr. Napier at the time of his death the owner of the title- to the land sought to be partitioned? If he was not, then, of course, appellants who claim through him have no interest in or title to it and necessarily their' right to a partition thereof fails. It was therefore incumbent upon the appellants to establish title in their ancestor, T. Gr. Napier. The lower court finding that they had “wholly failed to establish any title either legal or equitable, to any portion of the tract of land,” dismissed their petition, and they appeal.
Appellants contend that T. Gr. Napier owned the land both by paper title and by adverse possession. In support of their claim to paper'title they offered in evidence ten or more patents and deeds covering large tracts of land containing many times the acreage here in dispute, and they assert that somewhere in some of the descriptions in these exhibits is to.be found the land in question. These tracts are not plotted upon a map or otherwise located or identified and it is utterly impossible for this or any court to determine whether the described land is contained within the boundaries set out in the numerous exhibits or to even ascertain the location of the boundaries themselves. One of the beginning points — -as an illustration — is described as “Beginning on two beech trees and flat rock, on the west side of the Long fork of
The only appellee who undertakes to point out definitely the source of the alleged paper title claims under a title bond filed in the record. That bond is dated March 7, 1858, but was not recorded until June 8, 1917, or nearly two years after the institution of this action and 17 years after the death of T. Gr. Napier and 58 years after the date of its execution. The land therein referred to is described as “a certain tract or parcel of land lying and being in the county of Perry and state of Kentucky, all that boundary of land of the folloing (sic) ground of Taitón Gr. Napier branch containing .about 300 acres more or less with all the appurtenances thereunto belonging or in any way apparting (sic) to T. Gr. Napier, etc.” It will readily be seen that this bond does not contain the description of any land that may be definitely located and it is otherwise wholly ineffectual as a source of title. Nor is it urged-as.such by appellant’s counsel, who seem to have abandoned the claim that T. Gr. Napier possessed a paper title to the land, since they have not discussed that subject in their brief. However, whether abandoned or not, we are satisfied from our examination that the record wholly fails to establish such claim and the court did not err in so holding.
Appellants’ contention that T. Gr. Napier held title by possession is likewise unsupported by the record. The evidencé shows that Napier owned a large estate in land located on Sixteen Mile fork and' Main Lost creek in Perry county at the time of his death in March, 1901. In the latter part of that year the appellants, as his heirs, by agreement divided his lands by deeds inter alia, each receiving a deed from the others to the parcel allotted to him. Appellant M. C. Napier received a deed to a tract which, roughly, lies north of and contiguous to the larger part of the land now in dispute. This land extended from M. C. Napier’s southern line to a ridge of hills some distance to the south and was not divided by the heirs. They state that the reason they failed to divide it was the fact that there was some doubt in their minds as to its title, and they felt that it would be a source of litigation and therefore none of the heirs was willing to have it allotted to him. They assert, however, that it was a. paid of the estate of T. Gr. Napier and that he had held and occupied it to the top of the ridge to the south, and
We have, heretofore, held in numerous decisions that such a line may be established and that when established it is sufficient to support a claim of title if marked, acquiesced in and held for a long period of time. Standifer v. Combs, 184 Ky. 708.
We have carefully examined the evidence in this case, and are convinced that it wholly fails to meet any of these requirements. But one witness testifies with any degree of certainty or definiteness as to when, where or by whom the conditional line was established. The deposition of that witness wa's suppressed on appellees’ motion upon the ground that it was taken in the absence of the appellee and their counsel, and the questions and answers were wholly in the handwriting of one of the attorneys for the appellants. The facts with reference to its taking are as follows: On June 23, 1919, appellants served a notice on appellees that on the second day of July, 1919, they would proceed to take the deposition of Austin Neace near Ned, in Breathitt county, Kentucky. The hour at which the deposition would be taken was not specified. On the morning of July 2nd, appellees’ counsel, riding on horseback, met appellants ’ counsel some few miles from' the home of Neace. The exact hour is in dispute, but'it was evidently
“The purpose of this provision was to procure an authentic statement of the witness under oath and -also that it be definitely ascertained to what the witness has made oath, and therefore either that the witness himself shall write the deposition or that the officer shall write it, and when the officer writes it, to bring it directly to the attention of the witness after'it is written, it must be read over to and subscribed by him. The object of having the officer write the deposition is to prevent the substitution of false depositions or the coloring of answers by having them written by parties who are interested in the litigation. . . .
“We therefore conclude that an act is still the official act of the officer, though not personally done by him,. if it is. done under his direction in his immediate personal supervision.”
While this interpretation has been given this section of the Code, it was never intended, and the decision above referred to so states, that a party interested.in the outcome of the litigation could be employed or authorized by the officer to write the deposition, particularly in the absence of either the consent or personal presence of op
With this deposition out of the case, appellants’ proof wholly fails to establish the existence of a conditional line or of adverse possession. A number of witnesses referred vaguely to having heard some conversation with reference to such a line. Some say that years before they had seen a few marked trees on the top- of the ridge, but none of them definitely shows its location or extent, and all of them differ more or less as to the parties by whom the line was established.
The record also utterly fails to show any substantial evidence of adverse possession. The land is wild, uncultivated, unfenced and unimproved, and its boundaries apparently unknown. It is true that one or two witnesses testified that many years ago T. Gr. Napier had cut timber on it on one or two occasions, but this, even if true, is insufficient to establish possession. None of the appellants claimed this land or exercised any right of ownership ever it from the date of their ancestor’s death in March, 1901, until the institution of this action in December, 1915, although they promptly divided - the rest of the property.
Moreover a large part of the land which appellants seek to partition is admittedly within the boundary of the parcel of their ancestor’s land conveyed to appellant, M. J. Napier, by the other appellants and he having conveyed it to the appellees, it is obvious that appellants have no title to or interest in it.
It would not be difficult to demonstrate from the record that, even if possession had been proven, it was neither open, adverse nor continuous, but we do not deem it necessary to discuss this phase of the case further. It is sufficient to say that neither a conditional line nor adverse possession is satisfactorily proven by the evidence.
Wherefore, the judgment is affirmed.