No. 90 | E.D. Ky. | May 13, 1912
This cause is before me for final decree. Of the five defendants, Pinkie Kidd, wife of the defendant, Sam Kidd, and adopted daughter of defendants John Hill and Nancy Hill, is the only real party in interest. It is a suit in equity to quiet the title of the plaintiffs to a tract of land in Wayne county, Ky., in this district, containing 1,138 acres as against the claim of the defendant Pinkie Kidd. The bill alleges that the plaintiffs are the owners and in the actual possession of that tract,. They claim title thereto under a deed therefor from E. N. Alexander and wife, dated November 1, 1903, lodged for record in the Wayne county court clerk’s
The main controversy in the case relates to the location of the Mills patent. The defendant claims that it covers more land than the plaintiffs are willing to concede. 1 am not sure that plaintiffs concede that the patent can be located so as to cover any of their land. It is certain that they deny that it can be so located as to cover all that the defendant claims that it covers, which is much more than will be covered as plaintiffs view the matter by any possible location. It is also in issue in the case whether plaintiffs were in actual possession of the land in controversy at the time the suit was brought, a fact essential to the maintenance thereof, and also, whether at the time of the making of the deed from Alexander and wife to plaintiffs, under which plaintiffs claim, the defendant was in the actual adverse possession of the land in controversy, so as to render that deed champertous and without effect in passing title thereto to the plaintiffs. But for the present at least I pass these minor issues by and proceed at once to a consideration of the main controversy.
The Mills patent states that the boundary of land covered by it contains 100 acres. According to plaintiffs’ claim as to the true location thereof, it contains 600 or 700 acres. It is located on the west side of the South fork of the Cumberland river. At the-time of its emanation the patentee owned on the same side of that river, hut some distance away, a tract of land containing 250 acres conveyed to him by Robert Parmley, to whom same had been patented. The boundary of the Mills patent consists of 13 lines and 13 corners. The course and distance of each line except the last is given. The corners called for are all stake corners except the first and last. The first corner called for is a poplar and the last a pine. The first corner is not otherwise identified. The pine corner is said to be “J. W. Mills corner,” which defendant claims is the northwest corner of the Parmley patent, then owned by Mills. Six of the stake corners are located otherwise than by the courses and distances there cornering. Three of them, the second, the sixth, and ninth, are said to be “at the river cliff” — i. e. the cliff of the South fork of Cumberland river — two of them, the tenth and eleventh, are said to be “on” and “in” “Thomas Ryan’s line,” the tenth line running from the one to the other, and, in addition to having its course and distance given, is said to run with Ryan’s line, and one, the twelfth, is said to be “on Isaac Foster’s line.” It will be noted that it is not stated whereabouts at the river cliff or on or in Thomas Ryan’s line or on the Isaac Foster line these stakes are said to be located. They are simply said to be at the river cliff or on or in Thomas Ryan’s line or on Isaac Foster’s line.
According to defendant’s claim, the boundary should be located in this way. Beginning at the poplar, termed the “coffin poplar,” to distinguish it from another poplar indicated by some of the evidence as the true corner, and running the first line, the course called for, but extending jt from 200 poles, called for, to 410 or 414 poles, takes one to the river cliff; the point where it strikes same being the second stake corner called for as located at the river cliff. • Then running the second, third, and fourth lines according to the courses and distances called for and the fifth line according to the course called for, but extending it from 60 poles called for to 86 poles, takes one again to the river cliff; the point where it strikes the same being the sixth stake corner called for as located at the river cliff. Then, running the sixth and seventh lines according to the courses and distances called for and the eighth line, neither according to course or distance, but north 90 poles, instead of south 45° west 20 poles,, called for, takes one again to the river cliff; the point where it strikes the same being the ninth stake corner called for as located at the river cliff. Then running the ninth line the course called for, but extending it from 60 poles, called for, to 150 poles, takes one to the line of a 50-acre Thomas Ryan survey, located on the west side of the South fork and binding on it; the point where it strikes that survey being the tenth stake corner called for as located on Thomas Ryan’s line. Then, running the tenth line with that line of the Ryan survey, the distance called for, not the course called for, north 85° west, but north 19° west, the course of the Ryan line, takes one to another point in that line, being the eleventh stake corner called for as located in Thomas Ryan’s line; Then running the eleventh line the course called for, but extending it from 40 poles called fo'r to 300 poles, takes one to the line of an Isaac Foster survey of 200 acres; the point where it strikes that survey being the twelfth- stake corner called for as located on Isaac Foster’s line. Then running the twelfth line neither according to course or distance called for — i. e., south 33° east 150 poles — but sopth 8° east 270 poles, takes one to the northwest corner of the Robert Parmley 250-acre survey owned by the .patentee .Mills at the time of the making of survey in question, ip which, three pines are called for; that corner being the thirteenth corner called for as “J. W. .Mjlls corner, a- pine.” Then running w'ith the northern line of the Robert Parmley 250-acre survey, called
As already intimated, I am not sure that I have caught the plaintiffs’ position as to the location of the patent. Possibly they contend it is nonlocatable, or, in other words, that its location is so uncertain as to be void. Possibly they contend that the coffin poplar is not the beginning corner, and that of the two poplars referred to in the evidence the other poplar should be accepted and the patent located with it as the beginning corner. Possibly, 1 hey contend that whichever poplar is accepted as the beginning corner it should be located according to courses and distances called for, without any reference to the calls for the river cliff, Thomas Ryan's line, Isaac Foster’s line, and the J. W. .Mills corner, a pine or Mills old line, connecting the thirteenth corner with the beginning corner by a line drawn between them. Possibly they contend that, according to the location claimed by defendant, the patent boundary will not reach the river cliff, Thomas Ryan’s line, Isaac Poster’s line, J. W. Mills’ corner, a pine and Mills old line. The plaintiff’s surveyor so testifies. According to him, extending the first line from the beginning corner along its course from
Before taking position as to whether the patent is locatable and What is its true location, it should be noted that defendant claims that by a judgment of the circuit court of Wayne county rendered at its January term, 1907, affirmed by the Court of Appeals of Kentucky on the 28th day of February, 1908, in certain litigation pending therein, the patent in question here has already been located in accordance with her contention, and that the plaintiffs are estopped by reason thereof from claiming that such is not the true location. That the patent has been so located is the fact; the opinion of the Court of Appeals on its affirmance of the judgment of the Wayne Circuit Court being reported as Alexander v. Hill (Ky.) 108 S. W. 225.
The defendant Pinkie Kidd, then Pinkie Hill, was the plaintiff in that litigation. It was begun 11th day of January, 1904. The deed from Alexander to plaintiffs had then been made, but it was not lodged for record until January 12, 1904, the day after the suit was brought. She did not then know of the making of that deed, and did not learn of it until after the termination of that litigation. She had been told that a deed had been made by Alexander to one J. W. Rowe, but, on examining the records, had found no such deed. The suit was brought by her to quiet her title as against the Alexander claim. In her petition she claimed the patent to be located as claimed herein and as was subsequently adjudged therein, and that she was in the actual possession of the land covered by it as thus located. She made defendants thereto F. N. Alexander, plaintiff’s grantor, whom the record showed to be still the owner of the Alexander claim, and J. W. Rowe, to whom she had been told a deed therefor had been made. Neither of the plaintiffs were parties- of record, unless it can be said that J. W. Rowe should be taken as plaintiff I. W. Rowe. The action, was defended by Alexander. - He did so in the name of himself and J. W. Rowe. The answer was in their joint names, and all steps were so taken and the judgment went against both.
In the deed from Alexander to plaintiffs he had given a general
“Justice requires that every cause be once fairly and impartially tried, but the public tranquillity demands that, having been once so tried, all litigation of that question and between the same parties should be closed forever. It is also a most obvious principle of .justice that no man ought to be bound by proceedings to which he is a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be bound. Under the term ‘parlies’ in this connection, the law includes all who are directly interested in the subject-matter, and had a rigid to make defense or to control the proceedings and to appeal from the judgment. This right involves also the right to adduce testimony and to cross-examine the witnesses adduced on the other side. Persons not having these rights are strangers to the cause. But to give full effect to the principle by which parties are held bound by a judgment all i>ersons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings. The ground, therefore, upon which persons stand,-ing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and, wherever this indentity is found to exist, all are concluded alike.” 1 Green-leaf, Ev. §§ 522, 523.
It is urged that the judgment rendered in the tresspass suit in the Wayne circuit court brought by plaintiffs’ grantor against defend
The judgment, therefore, of the Wayne circuit court in that suit, affirmed by the Court of Appeals, is an estoppel against the plaintiffs claiming herein that the true location of the patent in controversy is not as adjudged therein.
Were this not the case, and the true location of the patent an open question before me, I do not think I would be justified in deciding the matter differently from the state courts. It is true that some additional evidence has been introduced herein, but I do not think that it is of such consequence as to warrant my going that far.
The bill is dismissed, at plaintiffs’ costs.