173 Ky. 140 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
This is an appeal- from a judgment of the Lawrence Circuit Court, in an action wherein F. T. D. Wallace, Jr., and others, the appellants, were the plaintiffs, and the appellee, James Q. Lackey, was the defendant. The action was to recover from the appellee the value of certain trees, which appellants alleged that he had wrongfully cut and removed from their lands and converted to his own use, and damages done to their lands by cutting underbrush and making roads over them.
The appellants’ motion for a new trial being’ overruled, they have appealed.
While the court below did not assign any reason for peremptorily directing a verdict, an examination of the record demonstrates clearly that it was done upon the ground that the appellants had failed to manifest any title to the lands in controversy, and not because all of the evidence had tended to show title to the lands in the appellee.
The land in controversy is an unenclosed, unimproved tract of woodland, containing ten and one-half acres, and the familiar rule, that the plaintiffs are obliged to recover, if at all, upon the strength of-their own title, and not because of want of title in the defendant prevails in this case. The ruling by which the court directed a verdict for appellee was the result of a previous ruling by it, as to the admission of certain evidence for the appellants, which will be hereafter noticed. The facts of thé case, as developed by the proof foy the appellants, will be adverted to for the purpose of determining whether the court was in error as to its ruling upon the admission of the evidence mentioned.
On November 24th, 1853, John Rogers, Jr., sold -and conveyed to Thomas Wallace a large tract of land, of which the tract in controversy was a part. On December 10th, 1857, Wallace sold and conveyed to John Haws a portion of the land upon the southern end of his tract. The northern end of the portion sold and conveyed to Haws adjoins the land in controversy. He, also, sold a portion of the land, which was conveyed to him by Rogers, to Wellman and Wilson. This portion adjoined the land in controversy for a short distance on the east side. .....
In 1875, in a suit by the receiver of the estate of Thomas Wallace against John Crabtree, the lands owned by Crabtree and which lie adjoining the lands in controversy, upon the north, were sold by a judgment of the court, when Greenville Lackey became the purchaser, and same were conveyed to him on the 23rd day of June, 1883. After the death of Greenville Lackey, the appellee, James Lackey, became the owner of a portion of these lands by inheritance from his father, Greenville Lackey. The boundary of these lands shown in the evidence does not seem to cover or embrace the lands in controversy.
Upon the trial, after appellants had exhibited a chain of title to the lands in controversy from the Commonwealth of Kentucky down to Thomas- Wallace, and then the deed from the commissioner of the court in the suit for the settlement of Thomas Wallace’s estate to appellants, which was made in 1897, they then offered in evidence the deed by the commissioner of the court in the same suit, which was made to them in the year 1910, and the order of the court directing the making of such deed. The introduction of this deed in evidence was objected to and the court sustained the objection, upon the alleged ground that the suit had been re-docketed and the deed made without any notice to the appellee, and after the trespasses complained of were committed. While there was no formal avowal of its contents, it shows for itself and the record makes it
The alleged trespasses complained of in the petition were committed before the corrected deed of 1910 was executed to appellants by the commissioner of the court, and it is contended, that, at that time the appellants were not the owners of the land in controversy, and for that reason the corrected deed should not be admitted in. evidence, although it may have invested appellants with title upon the date of. its execution. However, if the land in controversy was a portion of the lands which were sold at the decretal sale, on January 13th, 1876, to Eugene Wallace and F. T. D. Wallace, Sr., and the same confirmed in May, 1876, and the purchase money paid, the purchasers became the owners of the land . upon the confirmation of the sale and the payment of the purchase price. The confirmation of the sale vested in the purchasers the equitable title to the land, and they thereby became the beneficial owners. The execution of the deed only conveyed to them the legal title. Until its execution, the heirs of Thomas Wallace held the legal title, but it was for the benefit of the purchasers of the land, and when the deed was executed it related back and vested in the appellants the legal title as held by the heirs of Thomas Wallace at the confirmation of the sale. Neal v. Louisville, 6 R. 300; Dennis Bros. v. Strunk, 108 S. W. 975; Feltner v. Huff, 118 S. W. 936.
Hence, the court was in error in excluding the corrected commissioner’s deed to appellant for the land and the order directing the deed to be made. While the records of the suit except the order to redocket and the judgment directing the deed to be made were not offered
The questions raised in the record and in the briefs as to the competency of the evidence offered by the appellee in support of his defense and the sufficiency of such evidence to support a defense to the action are not decided, since the court below was not asked, at the conclusion of the evidence, to, and did not rule thereon, and no instructions were offered or considered relating to the grounds of the defense, and such questions are not now before this court for adjudication.
The judgment, for the reasons given, is reversed and the cause remanded for proceedings consistent with this opinion and other proper proceedings.