93 Ky. 435 | Ky. Ct. App. | 1892
DELIVERED THE OPINION OF THE COURT.
This is an action brought May 1, 1888, by appellant P. EL Thomson against Margaret Thomson, widow, and Rodes, Charles and C. C. Thomson, children and heirs, of Rodes Thomson, son of plaintiff', for recovery of a tract of about 100 acres of land.
While the allegation of the petition that plaintiff is
The evidence introduced on behalf of defendants, uneontradicted, as was the case at conclusion of it, fully supported their claim of title, and consequently the motion then made for an instruction to the jury to find for plaintiff was properly overruled. The same motion was made and overruled at conclusion of the entire evidence. But we need not review the ruling then made, because it is subordinate to the question that arose on motion for a new trial, whether the verdict is sustained by sufficient evidence.
Although it is by subsection 6, section 340, Civil Code, made in terms a cause for new trial that the verdict is not sustained by sufficient evidence, this court will not reverse simply because a verdict is not in our opinion sustained by a preponderance or the weight of evidence, but only when it is clearly and palpably against it.
About the year 1867, plaintiff P. PI. Thomson placed his son Rodes in possession of about 150 acres, including the 100 acres in dispute, which was part of his home tract containing about 1,200 acres. He also placed two other sons and a daughter in-' possession of a part of his tract. But some years after that date, though before expiration
There is evidence on the other hand of plaintiff and others tending to show he did not give the land to Rodes Thomson; and in addition there was introduced a paper, executed by him at the instance and at the house of his father, in which it is stated substantially the latter had, a number of years previously, loaned to him use of the one hundred acres of land, and that ho then recognized it to be the land of his father, with the unimpaired right to retake possession and dispose of it at his pleasure; and furthermore, that he (Rodes) never hold said land adversely to his father, but all the time recognized his title as perfect. In 1884 another paper was prepared by his brother, which he was induced to sign, containing, in the language used, a solemn disavowal of any right to the land, and admission of title at that date in his father.
Rodes Thomson married in 1869 against his father’s will, and there never was afterward much intercourse or good feeling between his wife and father’s family; nor do Rodes and her appear to have always lived together harmoniously. lie was very dissipated and, as a consequence, generally embarrassed financially; and at the time the last paper was given owed his brother, who had required him to make a settlement. The evidence is such that it might have been reasonably inferred by the jury that not only was Rodes Thomson, on account of his dependence upon his father, without disposition or will to resist any
The instruction given, and which presents the true issue,
But counsel contends it was error to refuse an instruction asked embodying the idea that adverse possession, sufficient to defeat the legal title of plaintiff", must have been hostile in the commencement and continued uninterruptedly for fifteen years, and of such character as to clearly show that Rodes Thomson, the occupant, claimed the land as his own. A joint tenant may, by adverse possession for fifteen years, defeat any recovery by his co-tenant; so a lessee’s adverse possession for the statutory period tolls the right of even his landlord’s entry. But as the' entry is in each of such cases amicable, and no presumption of adverse claim exists, adverse possession, in order to bar recovery, should be brought to notice of the joint tenant or landlord, and therefore proved to have been open and of such character a? to clearly show that the occupant claimed the land as
Perceiving no error of law occurring on trial of this •case, and the verdict not, in our opinion, being clearly against the evidence, the judgment is affirmed.