150 Ky. 576 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
This appeal involves the title to a two-ninths undivided interest in- a tract of land described in the petition as containing about 350 acres. Appellants claim to own it by descent from their father, James Turner, Sr. Appellee claims that appellants sold and conveyed their interest in their father’s estate to their brother and ■that it, by mesne conveyances, has become the owner of the whole survey of land. There was much testimony taken in the case, but the only question necessary for us to consider is whether the conveyances by appellants to their brother passed to him their entire two-ninths interest in their father’s land, or whether these deeds failed to convey their interests in the land in contest.
It appears that James Turner, Sr., took out a patent for 1,800 acres of land, and that in describing the land, the patent only called for stake corners. Both parties agree that the land was not run out by a surveyor; that the courses, distances and stake corners called for
11 This indenture made and entered into this 11th day of May, 1863, between William M. Pennington and his wife, Lavina M. Pennington, late Lavina Turner of the county of Lee and State of Va., of the one part, and William Turner, Jr., of the County of Harlan and State of Kentucky- of the other part,
“Witnesseth: That the said William M. Pennington and his wife Lavina M/Pennington, late Lavina Turner, for and in consideration of the sum of Eight Hundred Dollars, to them in hand paid, by the said William Turner, Jr., the receipt whereof is hereby acknowledged, hath this day granted, bargained and sold to. said Turner all of the interest that we the said Penningtons ha& in the old tract of land belonging to the estate .'of. James Turner, deceased. Lying in the County of Harlan and State of Kentucky, on the Clover Pork, waters :of .Cumberland River, that is to say one-ninth part of: said tract of land which is undivided, and we the said Wmr M. Ben
“In testimony whereof, the said William M. Pennington and Lavina M. Pennington, late Lavina Turner, hath hereunto set their hands and seals the day and date first written.
“It is to- be understood that this deed includes one-1 ninth part of the old Bailey tract of land which belonged to said Jas. Turner, Sr., at the time he deceased.”'
It is certain that the expression, “old tract of land belonging to James Turner, Sr.,” used in both of the, deeds,, referred to the 1,800 acre tract. There is a statement in appellants’ brief that the “old place” referred to the Bailey tract of 400 acres which, or a part of which,. Turnér owned at the date of his death, as he had' owned, it for a .longer time than he had the 1,800 acre tract, but this, question is set at rest by the deed itself when it, after referring to the old tract of land owned by her father, expressly .states, that it is also to include a one-ninth interest she owned in the Bailey land. The deeds in express terms, convey all of appellants’ interest in the “old tract of land,” and names their interests as one-ninth each of the undivided whole which they bound themselves'to forever warrant and defend. As stated, neither appellants nor their brother who purchased their interests, knew at the time the deeds were made just where the lines and corners of the survey of land were-located; they did not know that the north line was beyond the' crest' of the mountain. It is evident, however, that they intended to sell and their brother intended to purchase from them, all their interest in the 1,800 acre tract- of land.
■ Appellants cite the case of Smith v. Cornett, 26 Ky. L. R., 265, and claim that it settles this' case in their' favor. ’ The facts of that case show that John H. Smith died in 1862 the owner of two tracts of land, one of which contained 800 lacres lying on the' waters of Poor Fork,
For these reasons, we are of, the. opinion that,.the lower court was correct in dismissing appellants ’ petition; therefore, the judgment is affirmed., 1; ■