117 Ky. 47 | Ky. Ct. App. | 1903
Opinion op the court by
Affirming judgment AWARDING A NEW TRIAL.
W. F. Owsley, Sr., a retired banker and merchant, and a man of wealth, owned and lived upon a farm of 235 acres on Cumberland River, near Burksville, Ky. The farm was well improved and was then worth about $10,000. His family in 1874 consisted of his wife, single daughter, son (appellee) , and mother-in-law. His wife was frail and died about 1881. His mother-in-law was an invalid. The single daughter married Dr. Grant, and moved to Louisville in 1886. Appellant had only three children.. Another daughter had married a Mr. Baber before appellant moved to the farm in question, and was living with her husband. The only son had never lived away from his father. He had been reared indulgently, and had all his life been the close companion of his father. The day he was twenty-one years of age, his father gave him $10,000 in secured notes, which were immediately redelivered by the son, with the request to his father to hold them and collect and reinvest them, which was done. In Octo
The son (appellee) began to handle horses. The father '(appellant) suggested to handle them on a larger scale and of a finer quality. So they embarked in that business about 1887 under the style of W. F. Owsley & Son. The father-claims he had no interest in that partnership; that he merely loaned his name to give credit to his son. The son claims that the partnership did exist; that he and his father agreed' that the father would put into the enterprise the use of three other farms which he owned, lying adjacent to the home place, and the son agreed to put in the use of his farm, the home
After the term of the court at which the ejectment action was tried appellant gave his deposition as a witness inhis own behalf in the suit pending in the same court of Sallie A. Owsley v. Wm. F. Owsley Sr. That case has been referred to above. To understand the question here presented it is enough to state that in that action Mrs. Owsley claimed that she had delivered to appellant, to be held by him in trust for her, about $11,000 in cash, derived from her father’s estate, and that he refused to pay it over to her or to account for it. He denied the existence of the trust agreement, and averred that he had already paid it to her and to her husband at her instance. In testifying in that action in support of that defense, he stated that the money was paid out to the husband, and at his instance (but comparatively little of it was paid to her directly), in the matter of paying his -accounts. These accounts were put in evidence. They were for merchandise for his family, grocery supplies, fuel, servants’ hire, wages of farm laborers, purchase price of the horses and other live stock bought and brought to the farm; for fencing and other improvements upon the farm. Indeed, it embraced every conceivable item of expense in managing and operating that farm, including all the household expenses, throughout the term in question. She denied'
A private memorandum or account book, in the handwriting of a party to a litigation, containing admissions damaging to his cause, the existence of which is concealed, if discovered
It is objected, though, that the newly discovered evidence is merely cumulative, and, as this court has repeatedly held that a new trial will not be granted upon the discovery of evidence that is only cumulative, the circuit court should not have granted this new trial. The newly discovered evidence was of a higher grade and different character from any heard on the original trial. It was not cumulative in the sense of the term as generally employed in opinions passing on that question. The trial court is enjoined to disregard those matters of practice that do not affect the substantial rights of the parties. Section 134, Civil Code. It is because of this policy, and the phrase in section 340, Civil Code, “material to the party applying,” that this court holds that the discovery of more evidence of the same character and grade as that already heard and considered by the trial court, and which would not, in all probability, affect the result of another trial, will not justify the granting of a new trial. .But where the newly discovered evidence is of a character that is unerring and convincing, satisfying the mind of the judge that it will probably have a preponderating influence upon another trial, a new trial should be granted.
If appellant’s position in the Sallie A. Owsley suit as to charging these items to and furnishing them for his son is true, it would follow that, if appellant died intestate, these items, or the great bulk of them, could be charged against appellee’s interest in his father’s estate as advancement's.
But the question most seriously urged is whether tlm evidence upon the former trial, even when considered with that newly discovered evidence, does not show that as a matter of law, appellant was never out of the possession of the farm. It is conceded that by the parol gift no title passed to appellee. Nor did appellant’s admission that he had given his son the property, nor did even his oath to that effect in a trial in another case, divest appellant of his title. If that has been done, it is solely because appellee has, by a continous adverse possession for 15 years under claim of title thereby acquired it. It has been decided a number of times by this court that such possession by the donee under a parol gift will ripen into a fee simple title. Commonwealth v. Gibson, 85 Ky., 666; 9 R., 205; 4 S. W., 453; Thomson v. Thomson, 93 Ky., 435, 14 R., 513, 20 S. W., 373; Creech v. Abner, 106 Ky., 239, 20 R., 1812, 50 S. W., 58; Gilbert v. Kelly, 22 R., 353, 57 S. W., 228.
But it is urged with great force that appellant has never been disseised; that he has daily entered upon the premises in dispute, and has exercised acts of dominion over them; and that the law attaches the actual possession to the holder statutory period necessary to toll the right of entry by the on the disputed premises. The character of possession for the of the legal title when both he and an adverse claimant are up-
Therefore, if appellant, though present on the land which he is alleged to have given to appellee by parol in 1874, and put him in the possession of, was not claiming the land as his own, but was, on the contrary, disclaiming it, and if he in fact exercised no act of ownership, in authority as owner, but was there as the guest of his son, the latter’s possession Was not thereby interfered with.
In Thomson v. Thomson, supra, it was held that an entry by a donee under a parol gift was hostile to the legal title, and, if possession was held thereunder for 15 years, the title in the donee was perfected. In that case the court, in most emphatic language, approved this instruction as embodying the law of adverse possession: “If the jury believe from the evidence that the plaintiff, Patrick Henry Thomson, made an absolute and unconditional verbal gift of his entire .title to the land described in the petition to his son Rodes Thomson, and, in pursuance of such gift, he, the said Rodes Thomson, entered into the possession thereof, claiming title thereto according to such gift, and that such possession of said land continued for a period of fifteen years previous to Rodes Thomson’s death, and during said period his possession was actual, visible, and notorious, then such possession is adverse, and the jury will find for the defendant.” In Commonwealth v. Gibson, supra, where a parol gift of land was made by a father to his children, and they had occupied it adversely for more than 15 years, it was said: “If one in fact enters under a purchase or a gift, although it may
There was evidence before the jury in the instant case of appellant’s contemporaneous claim of title and exercise of ownership, with his presence upon the land during the fifteen years. It was a question for the jury whether there had been in fact a disseisin of appellant. ; The only point we feel called upon to decide just here is that the mere fact of appellant’s presence upon the premises now in dispute during the time of appellee’s claim of possession and title was not ipso facto a breach of appellee’s possession, and that if appellant did not accompany his presence by some claim or act of ownership, or if, on the contrary he disclaimed ownership admitting it was in appellee, then the statute would net be stopped in its running in the latter’s behalf. The newiy discovered evidence discussed above was of such material character, bearing on the question as to who was in the actual possession of the farm, that appellee was entitled to have it considered by the jury trying that question.
The judgment awarding the new trial is affirmed.
Chief Justice Burnam dissents, Judge Settle not sitting.