184 Ky. 638 | Ky. Ct. App. | 1919
Opinion op the Court by
Reversing.
The judgment appealed from, was rendered at the -June term, 1916, of the circuit court, and tbe record was thereafter filed in this court, and after tbe order of submission in this court had been set aside on two occasions, was finally submitted, on May 10, 1918. A motion was .made, by the appellees, to strike the bill of exceptions from the record, and this motion was ordered to be passed and to be heard upon the final submission. The grounds of the motion to strike the bill under the circumstances .shown by the record, are deemed insufficient, and the motion is therefore overruled.
(b) This action was instituted by the appellants, •Clifton Prewitt, et al., whom we will call the plaintiffs, against the appellees, whom we will call the defendants,
During the period of the pendency of the action, it has suffered casualties, ánd the clerk inserted a memorandum, in his transcript, to the effect, that the record books, containing the orders made during the progress of the action, up to May 29, 1913, were burned, when the court house, in Wolfe county, was destroyed by fire, on that date, and had never been supplied, and hence, were not copied into the transcript. On July 26,1915, the court, apparently, upon its own motion, appointed a commissioner to supply the missing records, and the commissioner never having reported, on the 7th day of March, 1916, the plaintiffs entered a motion to extend the time for the commissioner to hear proof and supply the lost records,
The appellees now insist, that the judgment ought to be affirmed, because the appellant has not brought to this court, the entire record of the case, in as much, as he has not brought the orders in the case, which were burned, nor all of the records of the case of J. M. Bacon, etc. v. Wash Miller, etc. It is a well settled rule, that before a judgment should be reversed, an error, prejudicial to the rights of the appellee, should affirmatively appear from the record, and the necessary result of this rule is, that every presumption is indulged in favor of the correctness of the judgment appealed from. Dixon v. Melton, 137 Ky. 689; Huffaker, etc. v. National Bank, etc., 13 Bush 644. Hence, an appellant, if he would secure a reversal, here, must exhibit a sufficiency of the record, as will show affirmatively, that the decision appealed from, is erroneous, after indulging the presumption, which follows, a showing upon the record presented, that a portion of the record of the case, had been omitted. Where the transcript as made, shows, that a portion of the record of the case is omitted, which must have been before and considered by the court, in arriving at the decision, it will necessarily be presumed, that the. omitted portion justified the decision, as where a judgment overruling, a demurrer'to a pleading is appealed from, and the record shows, that an amendment to the pleading had been filed before the decision, and the amendment is omitted from the transcript, it will be presumed on appeal, that, the amendment cured the defect; or, if an appeal is from a decision on a question of fact, and the record shows,
(c) The plaintiffs, in the action, at the first, were M. C. Goff, James Goff, Elisha Goff, Caswell Prewitt, Washington Miller, and the appellant, Clifton Prewitt. The defendants were, John Wilborn, Elkanah Spencer, Dillard Hall, James Brooks,-Brooks, D. W. Chenault, Bettie Chenault and Joel Chenault. Since the institution of the action, all of the plaintiffs have either died, or transferred their interests, in the lands, in controversy, except appellant, Clifton Prewitt, and the action has not been revived in the name of the deceased plaintiffs. Of the defendants, D. W. Chenault and Bettie Chenault, claimed ownership of the lands, in controversy, and their co-defendants, were sued as trespassers upon the lands, .and as having acted under the direction of D. W. Chenault, Bettie Chenault, and her husband, Joel Chenault. Before the trial, the Uhenaults had all died, but, the action was revived in the name of their executor and devisee. The plaintiffs claimed to be the owners of a tract of land, designated, as the James Townsend lands,' and, also, to be in the possession of the lands, and sought to recover damages of the defendants, because of trespasses which they alleged, that the defendants had committed, by cutting and destroying the timber trees growing - thereon. The defendants denied the ownership and possession by plaintiffs of a certain portion of the lands, which they described, in their answer, and of this portion, they claimed the ownership and possession, and, further, alleged, that they were the owners of the portion claimed, by adverse possession for the statutory period. They, also, alleged, that in a suit in
In 1786, the Commonwealth of Virginia, granted toTerrason & Bros., a patent for twenty thousand acres of land, which embraced the lands in dispute, and all the lands in the above diagram. Thereafter, in 1819, the lands patented to Terrason & Bros, were sold, to satisfy the taxes due thereon, and were purchased by Jas. Hag-gins, and, in 1849 or 1850, were conveyed to the heirs of Haggins, by the registrar of the land office. At the time of the sale for taxes, they were assessed for taxation, in the name of one, who was described in the proceedings, as a successor of Terrason & Bros. Previous to 1850, one James Townsend, was residing at the .place which is indicated upon the diagram, as “James Townsend’s House.” He does not appear to have had any title or color of title to the lands, but, claimed dominion over six thousand, nine hundred and nineteen acres, which is represented upon the diagram, by the lines indicated by the figures 1, 2, 3, 4, 5, 6, 7 and 8. During his lifetime, which ended, in 1862, he had a small improvement and enclosure around his house, and certain of his heirs, lived at the same place, and at other places, within the six thousand, nine hundred and nineteen acre boundary, •until 1887 or 1888, and the appellant claims title by conveyances from certain of the heirs of James Townsend- and, also, by conveyances from Trabue, attorney in fact, for the Haggins heirs. About 1884 or 1885, Elizabeth Maxwell set up- a claim to two thousand and eight acres within the boundaries of the James Townsend tract.
About 1875, the Spencer house was erected and occupied, for a short time, by one Townsend, who seems to have been a mere intruder, and after he abandoned the house, Spencer took possssion of it and occupied it until his death, and after him, his wife and certain members of his family occupied it until the time of the bringing of this suit. About seventy-five acres around the Spencer house were enclosed and shortly after he began to occupy the house, he seems to have become a tenant of D. W.- and Bettie Chenault, but, upon what- ground the Chenaults based their claim to the land, does not appear. Charles occupied the house described on the diagram as “Charles House,” as a tenant of Wells and Mrs. Maxwell, for several years 'before the institution of this suit. The timber trees, the cutting of which is complained of, were situated between the lines described by the letters, A to F, and A to E. The line A to E, is said to be a due north line, while the one, A to F, is N. 9 W. and about 625 poles in length. The boundary of land, which the appellees claim to own, is described by the lines, A to F, F to E, E to G, G to H, H to A, while it seems, that the appellant claims to be a joint owner with others, of the entire James Townsend tract,
At the trial, after the evidence had been closed, the court being of the opinion, that the judgment, in the case of Washington Miller, etc. v. E. C. Chenault, etc., tried and decided, in the Powell common pleas court, determined the question of the ownership of the title to the lands, from which the timber trees were cut, as between the appellees and appellant and the persons, who claimed to be joint owners with appellant, and in favor of appellees, and that appellant was now estopped by the judgment to deny the title of appellees, directed the jury peremptorily to find a verdict for appellees, which it did and a judgment was rendered, accordingly, and from the judgment, this appeal is now prosecuted.
The doctrine of res judicata is, that a final judgment rendered upon the merits of the case, by a court having .jurisdiction of the subject matter and the parties, is conclusive of the rights of the parties and their privies in another suit on the points and matters in issue in the first •suit. A distinction must be drawn, however, between the effect of a judgment in a second suit between the same parties, upon the same cause of action, and a second suit between the same parties upon a different cause of action. In the first instance, the. judgment is a complete bar to the second action, not only as to-everything which was used in the first action to sustain or defeat the demand, but, everything, which the parties could have used prop
In the instant case, conceding that appellant was a party to the action of Washington Miller, etc. v. E. C. Chenault, etc., or a privy in estate, to a party to that action, which lie appears to have been, the cause of action was a different one, in this action, to the one involved in that. In that, the cause of action, was to secure a reformation of a deed upon the ground of mistake, and whether the mistake had occurred was the only question decided by the court. While, in this case, the cause of action is trespass upon the lands, which involves an issue as to the title to the lands, which was not adjudicated in the first suit. The accepted rule in determining whether two suits are upon the same cause of action is, whether the same evidence will sustain or defeat the action in both cases. It is evident, that a recovery could not be had, in the action of Washington Miller, etc. v. E. C. Chenault, etc., except by evidence showing, that the deed to Chenaults, by Trabue was made by mistake, nor could such action be defeated except by evidence controverting the fact of any mistake. Evidence as to the ownership of the lands by Chenault^, by adverse possession, or the possession of the land by Mrs. Maxwell, or her ownership of same, would not be relevant to the issue in that case, upon which the action-was decided, although an issue was made in the pleadings as to the title to the lands, but it was not material and hence, was not adjudicated. In this action, none of the evidence, relating to the right to a reformation of 'the deed, could be relevant. The judgment in the Powell county case being confined, solely, to the decision, as to whether the execution of the deed arose from-a mistake, and that being the only thing adjudicated in the case, the court did not necessarily or impliedly determine, any question relating to the ownership
The evidence tends to prove, that an undivided one-half of the boundary, described by the lines, A to B, B to C, C to D, D to P and P to A had theretofore been sold to Maxwell by Trabue, for the Haggins heirs, and the question of whether the lands affected by the exception can be located so as to make the property referred to a matter of reasonable certainty is dependent upon the evidence. Hence, the court was in error in rejecting proof of the contents, and execution of the writing between Trabue and Mrs. Maxwell, and as the depositions of Trabue and Mrs. Maxwell were given in an. action to which the defendants and the privies of appellant were parties, and as both are now dead, such part of the depositions should have been permitted to be read, as; tended to prove the execution and contents of the writing between them, and the location of the land embraced by the exception to which the writing referred, and any other portion of the depositions, which contains competent evidence upon the issues between the present parties, provided the depositions were filed in this action before the trial. Kerr v. Gibson, 8 Bush 130; Oliver, etc. v. Louisville & Nashville R. R. Co., 17 K. L. R. 840.
(2) While the court rested its decision in directing the verdict for appellees, solely, upon the supposed effect of the judgment of Miller, etc v. Chenault, etc., in the Powell common pleas court, if the action of the court for any other .reason could be justified, the judgment would not be reversed, and hence, it becomes necessary to advert to the other evidence heard for the appellees upon the trial. It was shown, that in the action of Blackwell v. Miller, etc., decided in the Madison common pleas court, on October 23, 1889, the appellant was one of the plaintiffs in that action. The action was for a division of the lands, which had been claimed by James Townsend, in his lifetime, between Blackwell, Wm. B.. Townsend and Miller, and appellant joined Blackwell and Townsend as a plaintiff, asserting interest in the lands and praying for the same relief as the other plaintiffs. The action was not only for a division, but, so far as it was an action against Wilborn and others, was to recover possession of certain portions of the lands,, which it was alleged that Wilborn and others held, un
The trial resulted in a verdict and judgment for defendants, and does not appear from anything appearing upon the record to have been determined from anything, except upon the merits of the action. It seems, that this judgment would be a bar to the appellant claiming anything in the lands, which were in controversy in that action, on account of any title, which he may have had at the time of the judgment if the appellees were parties to that action upon' the record or participated in the defense. It was his duty to have brought forward all the titles and claims to titles, that he then had, and he could not rest his action upon one claim of title alone, when he had others, and being defeated upon the claim of title put forward, he could not cut and come again and require the courts to adjudicate his rights by piecemeal. The evidence, however, shows, that he is also relying upon a claim of title, acquired since the rendition of the judgment in the case of Blackwell, etc. v. Miller, etc., and such title, if any he has, would not be barred by the judgment in that case. 23 Cyc. 1331.
The evidence heard, did not distinctly show, that the trespasses complained of, in this action, were committed upon the portion of the lands, which were involved in
(3) The evidence offered by appellees in support of their title to the land by adverse possession would not justify a directed verdict in their favor, because, while there was some slight evidence in support of their claim of adverse possession, there was other evidence contradictory of it, which made a question for the’ jury.
(4) It is urged, that the directed verdict was justified because of the deed executed by Trabue for himself and the Haggins heirs, to appellant and others, in 1898, as it expressly -excepts from the operation of the conveyance, the boundary of land, upon which the trespasses are alleged to have been committed, and we are, further, urged to adjudge in advance, the effect to be given to the deed. It is clear, that if appellant, has no title to the land, except what he may have acquired from this deed,
The judgment is therefore reversed and cause remanded for a new trial, and for proceedings, not inconsistent with this opinion.