142 Ky. 267 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
On January 28, 1871, Thomas M. Bennett and wife conveyed to a daughter, Sarah A. Bennett, for the stated consideration of $100, a boundary of land supposed to contain one hundred acres. On the same day, for $150, they conveyed to a son, James R. Bennett, two tracts of land, one containing fifty acres, more or less, and the other one hundred acres. Also, on the same day, they conveyed, for the stated consideration of $616.66 2-3, to Margaret J. Gray, a daughter, the following described boundary:
“Beginning at the mouth of the Rocky Fork, thence down the creek with t'he meanders to Smith’s line, thence with Smith’s line to the top of the ridge, thence to the beginning so as to contain two hundred acres by survey also two hundred acres on the north side of the War Fork of Station Camp Creek. Beginning at two pines corner to Pinkston’s hundred acre survey, thence with the same S 58 E 95 poles to two spotted oaks, thence so as to include two hundred acres by survey out of Ambrose survey of five hundred and fifty acres survey with the appurtenances thereunto belonging unto said Margaret J. Gray her heirs and assigns forever and the said Thomas M. Bennett and Mary Bennett, his wife, do hereby warrant and defend the aforesaid land against the title claim of all persons whatever, etc.”
On February 25, 1887, Sarah A. Bennett, who had in the meantime married J. R. Durham, conveyed her tract to J. P. Yance. On October 23, 1897, Margaret J. Gray and her husband conveyed a part of her land, supposed to contain one hundred and ten acres, to Henry C. Gray, and another part, supposed to contain one hunderd acres, to W. T. Gray. Henry O. and W. T. Gray were the children of Margaret Gray. Each of the Gray boys built upon the land deeded to him by his mother, cleared portions thereof, and, while they were so occupying it, James P. Yance, conceiving that he was the owner of the land of which they were in possession, brought suit to quiet his title thereto. The Grays answered, denying that they were claiming title to any of plaintiff’s land, and alleged that they were the owners thereof, and asked that their title to the same be quieted.
Upon a consideration of the pleadings, proof and report of the surveyor, the court was of the opinion that the Grays had a good title to the land claimed by them,, and he -therefore dismissed plaintiff’s petition and entered a judgment quieting the title to the respective-lands claimed by the Grays, as set out in the pleadings.. From that judgment this appeal is prosecuted.
For appellees it is urged, that the judgment must stand for two reasons: First, because it is a suit to quiet title, and appellant, in his pleadings and proof, neither-claims nor shows possession of the land in controversy; and second, because immediately upon receipt of their deed, their father and mother settled upon this land and have held it ever since, claiming the two hundred acres-under their deed, while neither appellant nor his vendor has ever been in the actual possession of any portion of' this land.
The first proposition, as advanced by appellees, is sound, and would be tenable here but for the fact that they have made their answer a counterclaim against appellant and sought to have their title quieted. This brings-the title before us, and, under the authority of Magowan v. Branham, et al., 95 Ky., 581, and Johnson v. Farris, 140 Ky., 435, decided October 27, 1910, we will settle the-question of superiority of title as it is here on the counterclaim of appellees.
Upon the second ground relied upon by appellees to-uphold the judgment we are furnished no precedent-
In each of these cases the outside lines were well defined, and the intent in each was to convey all the land between the outside boundary lines, and -the court, in order to effectuate this intent, divided equally the surplus land. But here we have a shortage in the land. The lines of the Gray deed evidently lapped over into the other two tracts and include a considerable portion of each, and especially of the tract now claimed by appellant.' If we were back at the parting of' the ways and the original grantors were before us, and the conditions had not been changed, the case might possibly be worked out along the lines mapped out in the case of Smith & Preston v. Prewitt, supra. But here-, after the lapse of forty years, during which time conditions have changed, the property passed into other hands, and improvements been made thereon, it will readily be seen that upon no just or equitable principle could the rule adopted in those cases be applied. Mrs. Gray and her husband paid more than four times as much for their land as appellant’s vendor paid for his, and yet they received only a fourth more land. The discrepancy in price is accounted for by
Judgment affirmed.