137 Ky. 63 | Ky. Ct. App. | 1909
Opinion of the Court by
— Reversing.
‘William Howard by bis deed conveyed to J. F. Bullitt a tract of land on waters of Quicksand creek in Knott county, described as containing 1,203 acres. Bullitt conveyed to tbe Virginia Kentucky Coal Corporation. It. executed a lease to appellee Wm. Owsley as its tenant. Only a small part of tbe tract was cleared of its forest or inclosed. But tbe written lease described tbe entire boundary as having been
Playes in January, 1888, obtained a patent from the commonwealth of Kentucky for 200 acres, within which his tenant settled as above stated. Whether that patent was void because the land for which it was issued had been previously entered, surveyed, or patented (section 4704, Ky. St. [Russell’s St. sec. 2758a3]) becomes a material question in this case as affecting the fact whether Owsley was in the actual possession of the land under his lease when Richie, Hayes’ tenant, entered. It is not competent to try the title in this character of proceeding, but because of the peculiar situation, the fact of where the legal title was then vested is material, indeed is necessary to be ascertained, as upon it alone depends the question, one of mixed fact and law, whether Owsley was in actual possession of the premises when Richie entered.
It was shown in the evidence that Wm. Howard obtained a deed for this 1,203-acre tract in February, 1888, from his sisters, Mrs. Shepherd and Mrs. Fitzpatrick, and at that time the boundary was plainly marked with aged marks upon its line and corner trees; that it was so marked as early at least as in 1871; that William Howard was born upon that tract of land, and had lived there for the whole of his life (about 50 years) up until he sold it to Bullitt; that William Howard cut the timber from the part near where Richie built his cabin, and held it since 1888. The in
If the only question here was the sufficiency of such possession to maintain the writ, and had nothing appeared regarding the Hayes patent, a case would have been made out, as it was shown to the jury’s satisfaction that Richie had built his cabin within the 1,203-aere tract included in Owsley’s leasehold. But it is always a relevant inquiry, on the plea of not guilty, whether the plaintiff was in actual possession of the premises, as well as whether the defendant forcibly entered thereon. An actual possession of
Nor do we know from this record whether the Howards or any one else had a grant from the state for this 1,203 acres, or that part embracing the 200 acres covered by.Hayes’ patent. There was no evidence on that point. If it should be conceded that there was not such a grant, or any grant older than Hayes, then Hayes’ patent would have conferred upon him the legal title to the 200 acres, unless Howard had by actual adverse possession acquired title thereto dehors a patent. Whether Howard had so
The constructive possession of land follows the legal title, and remains until ousted by an actual adverse possession. If Hayes was the owner of the legal title to the 200 acres, then he had the right of possession, and if he owned the legal title, Howard was not in actual possession of this forest land by virtue solely of his sisters-’ deed. If that were the case, Bichie’s entry was not tortious. If the 1,203 acres, or that part of it including the settlement of Howard and the plot where Bichie built his cabin, had been previously patented, and title thereby created had devolved upon the plaintiff’s lessor, either by conveyance or operation of the statutes of limitation prior to Bichie’s entry, then the written lease to Owsley would have invested him with the actual possession of the land in controversy at the time of entry. Or, if the 1,203 acres had not been previously patented, but Howard and those under whom he claimed had been in the continuous actual adverse possession of that boundary for 15 years immediately prior to January 25, 1888, the land in that event would not have been vacant land, and Hayes’ patent to it would have been void. Since January,
It is the contention of appellees that Howard and those under whom he claimed had had such possession for the statutory period of 15 years, prior to January 25, 1888. The strongest evidence in this record on that point is the testimony of Wm. Howard, from which we quote the following: “Q. How old are you? A. I was 50 years old on the 28th day of last February. Q. I want to read to you a boundary of some land deeded to you from Elizabeth Fitzpatrick. [Reads boundary,] Do you know that boundary? A. Yes, sir. Q. Is that what is known as. the Bill Howard farm? A. Yes, sir. Q. You say you were born on that tract of land? A. Yes, sir, I was was born on that place. Q. And you say you are 50 years old? A. Yes, sir. Q. Plow long did you live there? A. Until I was grown, married, and had a family. Q. Who lived there when you moved away? A. I rented the place to other parties when I moved over to Buckhorn. Q. Is this boundary of land the same boundary that you conveyed to Bullitt, who conveyed the same to the Virginia Kentucky Coal Corporation? A. Yes, sir; it is. Q. Now do you know where that little house is over there said to have been built by the Hayeses and Richie? A. Yes, sir; I seen it one time. Q. Is that house inside of the
This witness did not show, nor did any evidence offered tend to show, that the witness Wm. Howard
An effort was made by the plaintiffs to show that a survey for 200 acres, dated October 7, 1871, made for Wm. Dobson, covered the land in dispute. But the trial court excluded it, which ruling was error.
It was relevant to show that the 1,203 acres, including the Howard settlement and the area in dispute here, were patented lands; that they had been in the actual adverse possession of the plaintiff’s lessor and its vendors for 15 years prior to January 25, 1888. This evidence regarding previous adverse possession was admissible in this proceeding upon the same principle that the title papers were; that is, to show the fact of actual possession in Owsley when Richie entered. While title can not be tried in this proceeding, possession can be. Title papers may be received as evidence showing extent of possession. So may any other fact that tends to show the same thing. Upon the same principle title papers may be introduced to show that the possession was limited, if they do show it. The question for the jury will be, not who owns the land, nor the finding of any fact upon, which the coux-t could predicate a judgment of ownership. But it is who was in-possession, if any one. It is not perceived why any relevant fact that tends to show possession, or to limit it, or to exclude it, may not be received, although the same evidence might be relevant also in an action of ejectment or trespass. If the land in dispute was patented prior
Whereupon the 'judgment is reversed, and cause remanded for a new trial consistent herewith.