129 Ky. 415 | Ky. Ct. App. | 1908
This action involves the title to 44 acres of land situated on Mordicai creek, in Morgan county, Ky., and also a small tract of 2 or 3 acres situated some distance from the first tract. Appellants, A. "W. Over-ton, John A. Brislan, and William EL Holt, on March 3, 1903, brought an equitable action, averring that they were owners and in actual possession of said tracts of land; that appellees were trespassing thereon, and committing waste and interferring with appellants’ tenants. Appellants asked that appellees be enjoined from so doing, and that their title be quieted. The appellees, John M. Perry, Jr., and Lilia M. Perry, asserted title under and by virtue of a written contract of sale, made by Thomas D. Perry to E. B. Perry, whereby the former conveyed to the latter one-half of one-third of a tract of land consisting of 500 acres, situated in Morgan county on a branch known as the Condon Branch of Elk Fork of Licking River. The contract provides that the grantor is not to be responsible for the title to said land, but that E. B. Perry agrees to look to other sources for title. The consideration mentioned in the contract is $50. The other one-half of one-third-of the tract of land they claim was conveyed to E. B. Perry by John E. Cooper. The consideration for the latter contract is 8,000 feet of inch-sawed lumber, and the contract contains the same provision in regard to title; i. e., it requires the vendee to look to other sources for title. Afterwards E. B. Perry conveyed •to appellees, J. M. Perry, Jr., and Lilla M. Perry. The latter, claiming under this conveyance and the written assignments from Thomas B. Perry and John.
It appears that the land in controversy was em-’ braced in a tract conveyed to William Mynhier in the year 1883. The tract so conveyed adjoined Mynhier’s home farm, of which he was in possession. Mynhier had the tracts of land surveyed, and the boundary marked so that it included the land in question; and from that time on he claimed to a well-defined boundary, including the land in controversy. It was not necessary for him to make a new entry upon the land thus purchased in 1883, for the reason that the land being contiguous to his home place, and being surrounded by a well-defined boundary, and not being held by another under a superior title, nor in the
As to the two or three acres involved in the controversy between appellants and E. B. Perry, the evidence is such as to leave the mind in doubt, and the judgment of the chancellor will not be disturbed.
That portion of the judgment affecting the land in, controversy between appellants and E. B. Perry is affirmed. The judgment as to the 44 acres of land claimed by John M. Perry, Jr., and Lilla M. Perry, is reversed and cause remanded, with directions to enter a judgment in' conformity with this opinion.