172 Ky. 200 | Ky. Ct. App. | 1916
Beversing.
•Plaintiff, F. J. Sharer, brought- this suit against A. H. Tuck and W. A. Newton to enjoin trespass on a certain tract of land in Butler County and to recover damages for prior trespass. On final hearing, plaintiff’s petition was dismissed and the injunction denied, and the defendant Tuck was adjudged to be the owner of the tract in controversy and was awarded $75.00 damages on his counterclaim. Plaintiff appeals.
Mrs. F. J. Sharer was the wife of H. M. Sharer. On November 2nd, 1803, E. L. Johnson and wife, by deed duly recorded in the Butler County Clerk’s office, conveyed to F. J. Sharer and her children the following described tract of land: “Beginning on a black gum, running thence S. 20 E. 100 poles to a white oak; thence N: 70 E. 180 poles to a small black oak; thence N. 10 W. 37 poles to a hickory and two red oaks; thence N. 58 W. 180 to a black oak, poplar and sweet gum; thence S. 20 W; 106 poles to the beginning, containing 92 acres more or less.” The Johnsons acquired title through the heirs of Thomas Carson, deceased, whose lands were partitioned in the year 1828. Thomas Carson acquired title in 1815 from William Forsythe, who patented the land:
On December 2nd, 1863, Nancy J. Porter, Paulina M. Carson and James D. Carson conveyed to Henry M. Sharer, husband of F. J. Sharer 136 acres of land in Butler County, described as follows: “Beginning at a white oak, H. M. Sharer’s corner in his 92-acre survey, thence S. 60 E. 220 poles to a post oak, one of the original corners to the survey; thence N. 30 E. 100 poles to two small black oaks near the old Morgantown road-;thence N. 39 W. 116 poles to a dogwood, black oak and hickory in a hollow; thence S. 70 W. 186 poles to the beginning. ’ ’
In the year 1889, J. D. Bender, as administrator with the will annexed of J. B. Larue, brought suit in the Butler circuit court against Frances J. Sharer, widow, and James E. Sharer and others, children of H. M. Sharer, deceased, to subject the 136 acres of land aforesaid to the payment of a debt in favor of the estate of J. B. Larue. The land was sold and W. A. Newton became the purchaser. The sale was confirmed and a deed made by the commissioner to Newton on April
After denying the title of plaintiff, defendant asserted title to a small portion of land covered by an alleged lap between his and plaintiff’s deeds. He further alleged that as plaintiff was a party to the creditors’ suit above set out and as the judgment and commissioner’s deed were corrected so as to pover the lap, plaintiff was estopped by the proceedings in that case from asserting title to the lap. This contention was upheld by the chancellor. Thereupon the county surveyor was directed to survey and locate the land conveyed by the commissioner to Newton and to establish the line A-D to which Newton claimed. He was also directed to find the line F~Gf to which plaintiff claimed. The surveyor reported in substance that the tract of land in controversy was included in both plaintiff’s and defendant’s deeds and that there was a lap in their boundaries. The correctness of this survey was attacked by plaintiff and considerable evidence heard pro and con. Thereupon judgment was rendered in favor of the defendant.
We are unable to perceive how plaintiff is estopped by the proceedings in the creditors’ suit from asserting title to the tract in controversy. The sole purpose of that suit was to subject to decedent’s debts the particular tract of land described in the deed from Nancy J. Porter and others to him, dated December 2nd, 1863. Plaintiff, who was his widow, was made a party to that suit, not for the purpose of divesting her of her own land, but for the purpose of divesting her of whatever title she had to her husband’s land. No question of title or boundary as between her and her husband’s estate or his creditors was presented by the pleadings or in
With the estoppel feature eliminated, the case turns solely on the question of title. In view offthe fact that the case was tried upon an incorrect theory and .the evidence was directed more particularly to the question whether or not there was a lap between the two deeds, we are unwilling at this time to pronounce final judgment, but conclude that the case should be remanded and the parties given an opportunity to take further proof on the question of title.
Judgment reversed and cause remanded for proceedings consistent with this opinion.