201 Ky. 153 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Aritha Howard and her children brought suit .against Charles Simpson to quiet their title to a tract of land on
All the lands claimed by both parties are included in the boundary of a patent issued to John Bailey on the — day of- 1804. Plaintiffs have made an attempt to connect with that patent and thereby to show paper title deduoible from the Commonwealth, but as there is at least one missing link in the chain this is ineffectual. Without going into the details thereof we will examine the evidence to -see if they had acquired ownership of the disputed lands by adverse possession.
It appears that in the year 1833 Jesse Brock and his son-in-law, John Coldiron, ¡brought suit in the circuit court of Lincoln county, which then embraced the county of Harlan, and in which they -sought to extract title from one John Yantis through a title bond dated February 6, 1830, which Yantis had executed to them for the lands embraced in the John Bailey patent. This suit dragged along to a judgment in 1839-. In this judgment the master commissioner was directed to convey to them the interest of Yantis therein and which he accordingly did. While this was insufficient to cover other breaks in the title, it is claimed that it was sufficient to constitute color of title in the grantees, and that they entered thereunder, and the plaintiffs and those under whom they claim have since held possession, claiming to the boundaries of that patent.
Peggy Coldiron, daughter of John Coldiron and granddaughter of Jesse Brock, married Adrain Howard. It is claimed that she inherited her father’s interest in this- land, and through some -arrangement by inheritance or otherwise she and her husband acquired the interest of Jesse Brock therein, though this is assumed rather than proven by competent evidence. It is further claimed that afterward the entire tract was claimed and held ad
The disputed land is admittedly within the Bailey patent, hence Simpson derived no title from his patent, which was issued in the year 1891. It consists of about 10 acres, all of which was wild and uncultivated at the time the patent was.' laid. 'Some two acres of this lies on the opposite side of Cumberland river, and on this Simp-. son built a residence and lived for five or six years. However, he sold this- to another party and it is not in controversy. He afterward sold the disputed land to his son, Charles Simpson, the defendant in this action, who made no attempt to reduce same to possession, except by the occasional cutting of timber, until within a short time before the suit was filed, when he built a small house thereon, though it is questioned whether this is on the disputed land. At all events he and those under whom he claims have had no actual, adverse, continued possession for as much as fifteen years. As he is the appellant it might not be amiss to say that although the burden is on the plaintiff to establish their title as a condition precedent to recovery, yet as he has shown no title in himself either by way of record or possession he is in no position to secure affirmative relief, and the court did not err in dismissing his counterclaim seeking such relief.
While we would not be understood as laying down the principle that, if the parties went in under the Bailey patent claiming to the boundaries thereof, their possession would be restricted to the boundaries of the junior patents simply by. reason of the fact that such patents were taken, we are of the opinion that where the extent of the possession is in issue that taking such patents is a circumstance that may be considered in that connection. Looking at the evidence in this way it appears that John Coldiron and his wife, and possibly Jesse Brock, lived with Adrian and Polly Howard, and if they were claiming the entire Bailey survey and had gone in under that patent, and were endeavoring to strengthen their title thereto by laying junior patents thereon, the natural inference is that they would have covered the entire boundary, no reason to the contrary appearing. Again, if they had been claiming the entire boundary it is probable that they would have objected to the claims and possession of the other junior patentees, who, it seems, ac
It is shown that the plaintiffs and those through whom they claim have been in the actual, adverse possession of the 50 acre tract above alluded to for more than the statutory period. As located by them it would include a small part of the disputed land, as located by the defendant it does not include any of it. From the evidence this is a doubtful question, the weight of it being against the plaintiffs ’ contention. The plaintiffs also claim that a small part of the Adrian Howard 300 acre patent laps the disputed land. This is also a question of doubt. We cannot clearly see that any of the disputed land is included., in any of the land owned by plaintiff unless we should
Wherefore, the judgment is affirmed on original and cross appeal.