179 Ky. 677 | Ky. Ct. App. | 1918
Opinion op the Court by
-Affirming.
This was an action, in ejectment, by tbe appellant, P. B. Russell, in which, be sought to recover from tbe appellee, Simpson McIntosh, a small tract of land, contain-, ing between nine and ten acres, in Powell county. The appellant, who was the plaintiff below, alleged, that he was the owner and had a legal title to the land, and that the appellee, who was the defendant below, had wrongfully taken possession of the land and was withholding the possession from him. The answer put the legal title and the right to the possession, squarely, in issue. The defendant, furthermore, alleged in his answer, that he was the owner and held the legal title to the premises sued for, and that he and those, under whom he claimed had been in the continuous, peaceable and adverse possession of it, claiming it as their own, to a well defined and marked boundary for more than fifteen years before the institution of the action. The affirmative averments, in the answer, were denied by a reply. A trial of the issues being had before the court and a jury, the jury found a verdict in favor of the defendant, but upon the motion of plaintiff, the verdict was set aside and a new trial granted. Thereafter, another trial of the action was had, which resulted in the jury finding a verdict in favor of the defendant, again," and a judgment of the court dismissing the plaintiff’s petition. The plaintiff’s motion and grounds for a new trial being overruled, he has
In actions of ejectment, the plaintiff must always recover, if he recovers at all, upon the strength of his own title, that is, upon the showing of his right to the possession of the lands sued for, and not because of any want of right in the defendant to the possession, and hence, if the plaintiff fails to manifest a right to the possession, the defendant is entitled to a directed verdict in his favor, but if the court having denied that, to the defendant, and submitted the plaintiff’s right of recovery to the jury, which found such a verdict, under the instructions given, as the court should have directed in favor of the defendant, the plaintiff would have no cause of complaint, because of incompetent evidence received for the defendant nor because of erroneous instructions given.
In an action in ejectment, the possession of the land is the chief thing sought, but, the plaintiff must, in some proper way, manifest his right to the possession, the burden is upon him to do so, and if he fails to do so, he must necessarily lose, because, if he has not the right to the possession, it is a matter of indifference to him, as to who does have the possession.
The plaintiff, in such action, may prove his right to possession by showing, that he is the owner of the legal •title, and that the possession is wrongfully being withheld from him. He may show that he is the holder of the legal title by putting, in evidence, a connected chain of ■ conveyances from the Commonwealth of Kentucky down to himself, and where the property passes by inheritance, • to prove that fact; or he may prove his legal title by
The plaintiff, in ejectment, may also, show his right to possession, hy. proving, that he wasdn the peaceable possession of the property and was ousted therefrom by the defendant, who was a mere intruder ■ and trespasser, without color of title to the property. The plaintiff may, under such circumstances, succeed, although he shows only a bare possession and less, in point of time, than the statutory period, as where the deféndant is utterly without right or title, the -law presumes some right in the- one already in possession. Ratcliff v. Bell Fonte Iron Works, 87 Ky. 559; Sowders v. McMillian, 4 Dana 462; Fowke v. Darnal, 5 Lit. 317; Myers v. McMillian, 4 Dana 485; Pollitt v. Bland, 15 R. 227; Young v. Cox, 12 R. 347; Asher v. McCarty, 2 R. 218; McLawrin v. Salmons, 11 B. M. 16.
The plaintiff, in his petition, does not allege that he had ever been in the possession of the land sued for, and that defendant or any of his vendors had ousted him, but bases his right of recovery upon his ownership of the legal title. There is no proof that any of the predecessors, in title, of plaintiff were ever in actual possession of the land, in controversy, except the testimony of one witness for the defendant, who states, that he held it for three or four years under a lease, presumably by the Kentucky River Iron Manufacturing Company or the Kentucky Union Land Company, and that was previous to the year, 1897, which, of course, was not a sufficient length of time to create title, in any predecessors of plaintiff, by adverse possession. The evidence offered by plaintiff, in the way of writings, deeds and conveyances, to show legal title, in himself, fails to prove that the plaintiff has a legal title to the land sued for, when considered by themselves. He does not show any connected chain of title from himself to the Commonwealth of Kentucky nor to any title holder, common, as n. vendor, to himself and the defen
The judgment of the federal court in the action of Thomas Dewitt Cuyler against Robert A. Mason, which, was read, in evidence, over objections, was a judgment in an action, in which neither the defendant nor any one under whom he claims was a party, and was rendered in a suit brought after the lands in controversy were conveyed to McKnight, under whom the defendant claims. The judgment quieted the title in Cuyler, to certain portions of the lands within the circle, which were claimed by R. A. Mason, and as against Mason’s claim, but at the time of the bringing of the suit,-in which this judgment was rendered, and, at the time of its rendition, R. A. Mason, had no interest in the land, in controversy, as he had joined in a deed with others, theretofore, conveying the lands to McKnight. The deed to McKnight was made, not only,'by R. A. Mason, but three other joint claimants with him, and, under the facts, it does not appear that such judgment was competent as evidence upon this trial, except for the, purpose of showing the extent of the possession of Cuyler, as to lands claimed by R. A. Mason within the boundaries designated. The judgment, however, only purported to affect the portion of the land within the four mile circle, and while the evidence shows, that the lands, in controversy, in this suit, are embraced within the effect of the judgment, it does not show that the tract of land sued for is embraced by the deed from Cuyler to plaintiff, and is not within one of the many exceptions, in that deed.
Hence, it seems that the plaintiff having failed to show a legal title to the lands* either by a connected title
If the lands, sued for, had been embraced in the deed of conveyance from Cuyler to plaintiff, and were hot contained in one of. the exceptions in the deed, there was a question, which, under the evidence, that plaintiff was entitled to have submitted to the jury, and that was his contention, that Watson, the remote vendor of defendant, and one of timóse under whom defendant claims, had entered upon and taken possession of the land under an agreement to hold the land under Cuyler and to purchase it from him in the future. If so, Watson would have been . estopped to deny plaintiff’s title and the same estoppel would prevail against the defendant. Sanders v. Moore, 9 R. 965; Miller v. South, 12 R. 351; Turley v. Rogers, 1 A. K. M. 245; Fowke v. Darnal, 5 Lit. 317. If Watson entered into such an agreement with plaintiff’s vendor and the lands sued for were conveyed to plaintiff by his. vendor, the jury should have been instructed to find for the plaintiff, with the converse to find for defendant, if the agreement was not made, and the instruction should not have had any qualification relating to repudiation by Watson or any one claiming under him of the tenancy, as less than fifteen years intervened between the making of the agreement, if it was made, and the bringing of plaintiff’s suit. The alleged agreement was, however, made between Watson and Cuyler, and unless the land was embraced within the deed, which Cuyler thereafter made to plaintiff, the right of Cuyler, in the premises, did not pass to the plaintiff and without evidence that plaintiff had been conveyed the land by Cuyler, the plaintiff has no cause of action because of the agreement. Further, the plaintiff did not offer any such instruction- as mentioned above, and did not object to the one, which was given, touching the alleged agreement, and does not make complaint of it. Hence, the verdict of the jury being such as the court should have directed, there is no reason to set it aside or reverse the judgment based upon it. ■
The judgment is therefore affirmed.