148 Ky. 627 | Ky. Ct. App. | 1912
Opinion of the, Court by
Affirming.
This is an appeal from a judgment of the Harlan Circuit Court entered upon a verdict for $200 damages recovered by appellee of appellant for the cutting of timber and the tearing down of a fence by him upon a tract ■of land of which she claims to be the owner and in the possession. Appellant’s answer admitted the cutting, by him, of the timber upon the land in controversy, but. denied that it was of the value alleged in the petition; also denied appellee’s title or possession of the land and alleged appellant’s ownership thereof. 1 The land in controversy contains only three acres. Appellee is the owner of a considerable tract of land, by purchase at decretal sale and under a commissioner’s deed of date January 22, 1892, which formerly belonged to her father, W.
It is conceded by appellant that the agreed'line was established by W. J. Taylor and Jackson Blanton, but denied that the three acres of land in controversy was the land that W. J. Taylor acquired by virtue thereof. If, .as claimed by appellee, the agreed line left the three acres claimed, by her on her father’s side thereof, she was entitled to recover of appellant for the injury to her fence and the cutting of her timber, and the true location of the line as fixed by the agreement between W. J. Taylor and Jackson Blanton was and is the matter in dispute between her and the appellant.
It is also conceded by appellant and appellee that both W. J. Taylor and Jackson Blanton, as long as they
The evidence is very conflicting; but, as appellant’s deed from C. F. Blanton, calls for the oak corner in Mahaley Brock’s line, and to run from that point with appellee’s line, it is clear that the line with which it thus runs must be the agreed line as claimed by appellee, and, if so, it would seem to follow that the land in controversy is on appellee’s side of the agreed line, as the agreed line, as claimed by appellee, is the only one by which the Taylor land can be extended from the maple and chestnut in the Taylor patent to the oak corner of the Mahaley Brock land. In other words, it is only by following the agreed line from the maple and chestnut in the W. J. Taylor patent to the oak corner referred to in the Brock land, that appellee’s land can be made to reach the Brock land, at the oak corner.
There is, however, another feature of the case to be considered which seems to us conclusive of appellee’s right to recover; that is, she had enclosed by a fence the land in controversy three years’ before appellant’s purchase of it from C. F. Blanton and the conveyance thereof to him by deed from Blanton; and this enclosure she has continuously maintained since the fence was first erected; she, therefore, had the land enclosed and, by reason thereof, was in the actual adverse possession of the same at the time appellant obtained his deed from C. F. Blanton; therefore, the latter’s deed in so far as it covers any part of the land in controversy, was champertous and void, for section 210 Kentucky Statutes, declares :
*630 “All sales or conveyances including those made under execution, of any land, or a pretended right or title to the same, of which any other person, at the time of such sale, contract or conveyance, has the adverse possession, shall be null and void.” * * *
The statute bars appellant’s claim of title to the land. While the instructions given by the circuit court did not submit this aspect of the case to the jury, they did correctly state the law as to the issues of fact bearing upon the question of the location of the line and as to the measure of damages; and, as the appellee under the statute referred to, was entitled to an instruction directing the jury to find for her and to fix the damages sustained, according to the evidence, appellant is in no attitude to complain of the instructions that were given, unless the one as to the measure of damages failed to correctly state the law, which it did not do.
Wherefore, the judgment is affirmed.