117 Ky. 402 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
The appellants instituted this action to recover of the appellees a boundary of land situated in Edmonson county, Ky., alleging themselves to be the owners and entitled to the possession of it, and that appellees were in possession, and wrongfully withholding it from them. Appellees denied the title to appellants, and pleaded title in themselves by adverse possession. Upon the trial of the case appellants introduced in evidence deeds and oral testimony, which in our
Having reached the conclusion that appellants, by their evidence, made out a prima facie title from the Commonwealth of Kentucky to the land in question, it only remains to decide whether or not the court erred in giving the peremptory instruction in favor of appellees at the close of all the testimony in. the case. It may be conceded that appellants were entitled to a verdict in their favor, unless appellants made out a sufficient title by adverse possession. This they undertook to do by introducing some eight witnesses, who, without contradiction, testified to facts which showed that appellees had title to the land by adverse possession. No effort was made by appellants to disprove this testimony,
It would have perhaps been more regular for the court to have submitted the question of appellees’ title by possession to the jury, based upon their belief in the truth of the evidence; but where, as in thisl case, the evidence is all one way upon a given question, and the number of witnesses so great as to preclude the suggestion of either of the falsity of the testimony or mistake on the part of the witnesses, the error of the court in assuming the truth of the testimony and giving an instruction based thereon, if error at all, is not Of sufficient magnitude or importance to warrant a reversal of the case based thereon.
In the case of Turpin’s Heirs v. McKee’s Ex’rs, 7 Dana, 301, upon a question similar in principle to that in hand, this court said: “Although, therefore, the instruction would have been more formally .correct if it had submitted the assumed facts hypothetically to the jury, and based the conclusion upon their being found true by the jury; yet, as the facts were clearly proven, and there was no countervailing testimony, the plaintiffs were not prejudiced by the assumption of the facts on the part of the court.” In the case, of Chiles v. Boothe et al., 3 Dana, 566, it is said: “There are many cases in which the court may instruct ithe jury, upon the whole evidence, to find for one or the other party; and, although such a practice is not to be encouraged, yet when a verdict found under such instruction is conformable to law, the evidence, and justice of the, case, it is rarely disturbed. The instruction in tbe present case, considering the state of the evidence, was equivalent to a general instruction to find for the defendant, and there being no contrariety of evidence with regard to the nature and effect of the arrangement between Allen and Chiles, which is in fact the deci
Wherefore the judgment is affirmed.