204 Ky. 298 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Appellant sued for possession of a tract of 124% acres of land known as the ££E. R. W. Thomas farm.” Appellees answered and claimed this farm as the widow and children of B. B. Oakes. The court found for them and dismissed the appellant’s petition.
The Oakes family consisted of four brothers and one sister, whose names we will now give in the order of their
Kate Smith and her husband, J. V. Smith, were then visiting Mouroe Oakes, and he told them on Saturday before the place was to be sold on Monday that he was going to Russellville and was going to buy this Thomas farm for Ben if it didn’t go too high. He told them that Ben liked the place and his family liked it, and they wanted it for a home. Appellant and Ben Oakes attended the sale and the property was knocked down for $1,560.00. They returned to their homes after the sale. The widow of Ben Oakes testifies that Monroe then told her Ben had got the place and said he thought he got it cheap” and was ‘ ‘ glad we got it. ’ ’ Mack Hakes in his testimony said: “I suppose Monroe told me twenty times it was bought
Mr. C. E. Cornett testified that he saw Mr. Monroe Oakes a few days after this place had been sold and he told him he understood he had bought the property, and Monroe Oakes said: “ Yes, sir, I bought it for Ben.” The proof shays that this farm was known as the Ben Oakes farm, and that he lived on it, claimed it as his own, worked it, fenced it, improved it, built on it a barn and a tenant house, planted an orchard, and openly exercised every act of ownership over it from its purchase until he was killed. The evidence shows that Monroe Oakes often spoke of this Thomas farm as “Ben’s place.” Monroe Oakes never demanded or received any rent for this farm or any portion of the crops grown on it. Monroe and his sister, Mrs. Smith, passed the place one day and he pointed to the place and said: “Ben is not taking care of his place as he should. ’ ’
C. E. Cornet, who had come to Logan county when he was eighteen years old and had lived about a mile from this Thomas place for sixty-nine years, testified that after purchasing this property Ben Oakes occupied it continuously until his death, claiming and cultivating it as his own.
No one seems to have ever suspected that this farm did not belong to Ben Oakes until about the year 1913, when Monroe Oakes sold a portion of the land belonging to Ben Oakes to a negro. Ben Oakes saw the negro at work on the land and drove him off, and when investigating the matter of the negro’s purchase, he found that this-Thomas farm, instead of being deeded to him, was deeded to Monroe Oakes. He now began suit against Monroe' Oakes to settle their partnership affairs and to establish and quiet his title to this Thomas farm. While that suit was pending, the negro, whom he had driven off the farm, returned and killed Ben Oakes. For some reason, not disclosed, the Oakes family blamed Monroe Oakes.for Ben’s death, and Monroe Oakes testifies that none of' them would speak to him. The testimony of the sister, Mrs. Smith, was that Monroe took his stand on the side-
On the 16th of December, 1918, Monroe Oakes instituted this suit against the widow and children of Ben Oakes to recover this farm, and filed with his suit, as an exhibit, a deed executed to him and recorded in 1886, conveying him this farm.
The appellees contend that this farm was bid in by L. M. Oakes for Ben Oakes, that it was paid for by Ben Oakes, and that the title was taken to L. M. tOakes without the knowledge or consent of Ben Oakes.
The testimony of Monroe Oakes is very unsatisfactory. Instead of giving it in a concise, connected, straightforward way he hesitates, and his testimony is brought out by questions often either leading or sugges.tive, one hundred and four out of the one hundred and eighty-one questions propounded tq> him on his direct examination being of that land. If any objection was made to these questions, the record before us does not disclose it, hence it must be now treated as waived. Nevertheless, testimony thus brought out can have but little weight in any court, and if litigants, testifying for themselves about important matters, compel their counsel to resort to this sort of questioning in order to bring out what they know, they need not be surprised when it is given but little credence. The evidence required to establish a trust as in this case must, as said in Neel’s Exor., et al. v. Noland’s Heirs, 166 Ky. 455, be clear and convincing; that does not mean, however, that it must be entirely free from contradictions. See Boche v. Boche, 188 Ky. 327. The trial court was not favorably impressed by the evidence introduced by appellant, for that court dismissed appellant’s petition and quieted the title in the appellees. This court is primarily constituted to pass upon questions of law. It is often difficult, if not impossible, to convey to an appellate court, by way of a dry record and brief, the true force and effect of evidence and the character and integrity of the witnesses.
Every presumption is in favor of the correctness of the decision of the trial court, and- in order to warrant a reversal error must affirmatively appear from the record.
With these well established rules before us, we are compelled to order that the judgment be affirmed.