10 S.W.2d 465 | Ky. Ct. App. | 1928
Affirming.
Thomas Stephens sued James Justice to recover of him two small strips of land. He was unsuccessful and he has appealed.
Stephens had two sons-in-law, Joshua Damron and James Justice. In 1888 he conveyed to Damron a portion of his land by a very imperfect and unsatisfactory description. The next to the last line in that description is thus described:
"Thence up the hill in a northern course with the old road to Stephens' and Brown's line to a black oak with the top broken out."
In 1913, he conveyed some of his land to Justice by a description equally unsatisfactory. This land was merely described by giving the names of the adjoining landowners, and the west line of the Justice tract was described as bounded by "Joshua Damron's land." These two tracts of land were then, and had been for more than a quarter of a century divided by a rail fence, and Justice went into possession and thereafter continued in possession of the property on the east side of and up to this rail fence. Damron, in his evidence, admits that, but says that it was agreed that the road should be kept open, that the line was to be where the road was, and that the fence was built where it was in order to get it straight, and thus save rails. A large part of this record is devoted to an effort to locate this road. If we had to decide that question, we would have to say that there is no satisfactory evidence by which to locate it at all; but, as we have said, Stephens went into possession of this land up to this fence, and he continued in such possession and had such possession when, in 1914, Thomas Stephens by a deed from Joshua Damron and wife acquired his rights in the premises, hence so much of that deed as may have covered any portion of the land on the east of or Justice's side of this rail fence was champertous. See Crider v. Kentenia-Catron Corp.,
The judgment is affirmed. *47
