186 Ky. 25 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
Appellees, plaintiffs below, the real representatives of Jobn B. Adams, deceased, sued appellant, W. H. Potter, and others in possession, to quiet their title to an undivided one-half interest in certain lands covered by a patent issued to John B. Adams and Benjamin Adams in 1860, and for partition of the land. Potter answered denying plaintiffs’ title and asserting title in himself by adverse possession by himself and predecessors in title for more than forty years. The case was prepared and tried solely upon the issues between the plaintiffs and the defendant, Potter, and the court having adjudged that plaintiffs were the owners of an undivided one-half
Manifestly the first question for our consideration is whether or not the plaintiffs were the owners of an undivided one-half interest in the land, for unless so, they had no right to disturb the admitted possession of Potter, which possession he claims has been held by himself and his predecessors in title adversely to plaintiffs and all the world for more than forty years, but which possession plaintiffs claim has been amicable through the whole of that period because of their being’ co-tenants as a result of defendant’s predecessor in title having purchased the other undivided one-half interest therein from Benjamin Adams in 1874.
That plaintiffs are the only heirs of John B. Adams, who by the patent above mentioned acquired title to an undivided one-half interest in the land in dispute, and that he owned same when he died intestate in 1863, is admitted, but it is insisted by the defendant that plaintiffs were divested of this interest in the land by the proceedings and judgment in an action filed after the death of John B. Adams by his administrator, Randolph Adams, against his heirs and creditors for the purpose of settling his estate. If this is true, not only would, they have no title to the land, but the possession of the defendant and his predecessors in title, which is overwhelmingly established by the evidence, was adverse as to plaintiffs, as it is -only upon the theory that Potter and his. vendors were their co-tenants that they seek to avoid his claim of title by adverse possession. It is not denied that the court had jurisdiction of the subject matter and óf the real representatives of John B. Adams then in existence (some of whom are plaintiffs, and others having died are represented by their heirs, in this action) in the suit brought in April, 1866, by Randolph Adams as administrator of John B. Adams, against his heirs and creditors to settle his estate, but it is insisted by plaintiffs that the record in that case does not show that their interest in the land noAV in dispute was sold in that action, though ordered to be sold to pay their ancestor’s debts. The records and papers in that old suit that are available at this late date are very meagre and obviously incomplete. Not only
This old suit was instituted to settle the estate of John B. Adams and in pursuance of that design and as a necessary incident thereto it was adjudged that the land in dispute, of which he died the owner, be sold to satisfy his creditors, who had filed their claims therein. Even had the records shown nothing thereafter until the action by order of court was stricken from the docket, it seems only reasonable that the presumption would be warranted upon collateral attack that the master did his duty and sold the land and paid the proceeds to the creditors, as was necessary to fully carry out the judgment, and accomplish the purpioses of the action, especially when the record itself is proof of the fact that the order book contains but a meagre and incomplete record of the proceedings actually had, and that the papers now in the record are but part of those actually before the court. Any other course, following such a judgment, would have been most unusual and extraordinary, and it certainly would be unreasonable to presume that the administrator abandoned his desire to settle his intestate’s estate, and the creditors their desire to collect their claims after the judgment ordering a sale of this land for that purpose had been obtained, and that the master failed to perform his duty thereunder. However, the exigencies of this case, as extreme as they are, do not require us to carry the presumptions so far as above indicated, and we do not, of course, decide that it could be done; but, we are quite sure, and do hold, that at least upon this collateral attack, such orders as do appear of record following the judgment and order of sale, and which indicate that the land was sold as ordered, and which cannot reasonably be interpreted otherwise, should be so construed under a
"John B. Adams' Admr. v. John B. Adams, Heirs.
“Commissioner’s report confirmed and commissioner is directed to collect the money on the bonds and pay the same to the heirs and creditors."
We are, therefore, of the opinion that the old record contains sufficient to warrant the presumption, and nothing to the contrary, that the sale was made as ordered and the sale confirmed, and that the chancellor erred in adjudging plaintiffs the owners of an undivided one-half interest in the land involved in this action.
Wherefore the judgment is reversed and the cause remanded with directions to dismiss the petition as against the defendant W. H. Potter.