50 Ky. 155 | Ky. Ct. App. | 1850
delivered the opinion of the Court.
The Town of Lexington was established by an act of the Virginia Legislature, passed in the month of May 1782. Its boundary was represented as containing seven hundred and ten acres of land, composed of six hundred and forty acres of unappropriated lands, and seventy acres contiguous thereto being part of a military survey made for John Floyd, The act establishing the town vested the title to the seven hundred and ten acres in John Todd and six other gentlemen, as Trustees, and empowered and required them to make conveyances to those persons who had settled on the lots within the town, and also to the purchasers of lots that had been previously sold. The trustees were also authorized to lay off such parts of the land embraced in the town, as had not been laid off and settled, into lots and streets, and sell and dispose of the same for the benefit of the inhabitants of the town.
Some years previous to the passage of the act establishing the town of Lexington, the then inhabitants
Col. John Todd was one of the original settlers of the town. He was killed at the battle of the Blue Licks in August 1782, and left a daughter, his only child, then a little upwards of a year old. After his death his widow acted as his executrix in conjunction with his brother Robert Todd, who acted as his executor-. The provisions of his will under which they acted are unknown, the will having been destroyed at the time thfe Clerk’s office of the Fayette County Court was consumed by fire. His daughter intermarried with James Russell who died about the year 1802. Some few years after her husband’s death, she being the owner bf the balance of the survey of two hundred acres in the name of Floyd, adjoining the town of Lexington, which she had inherited from her father, laid it off into streets and lots, some of the streets being a mere extension of the streets of the town, and designated by the same name, and sold the lots to various individuals, and conveyed them to the purchasers, naming the streets as such in the deeds, in describing the boundaries of the lots conveyed. The limits of the city of Lexington were extended so as/ to include those lots and streets, and she conveyed some of the streets to the Trustees, but two or three of them, were not embraced in the deed, and have never been conveyed. She afterwards in the year 1826 or, 1827, intermarried with Robert Wickliffe.
In the year 1832, Robert Wickliffe and his .wife instituted this suit in chancery against the city of Lexington-, claiming:
An in-lot and an out-lot, to which Todd was entitled as one of the original settlers of the town.
The streets not embraced in the deed executed to the Trustees by Mrs. Wicldiffe, before her marriage with the present complainant, and that have been included within the city limits.
A small strip of ground called Locust street, about sixteen feet wide, and several hundred feet in length, outside of but adjoining the original boundary of the town.
The Circuit Court denied the relief prayed for, and dismissed the bill; and the plaintiff in error, has prosecuted a writ of error for the reversal of the decree.
The precise boundary of Floyd’s two hundred - acre survey cannot be determined with anyr degree of certainty, by the testimony in the cause. The extent of the surplus in the seventy acres depends upon the position of the survey, but although its boundaries arc not conclusively established, it may be assumed with safety, that the boundary laid off to include the seventy acres, contains several acres more than that quantity.
The town was surveyed and laid off into streets and lots in the year 1783, by Robert Todd, the brother, of John Todd. He was employed to do it by the.Trustees. His survey designated the boundary of the seventy acres, which boundary formed a part of the town boundary, and has been recognized as such ever since, and-the land inside of it has been held by the town, and claimed as a part of it from that period until the present time. The last of the purchase money for the seventy acres was paid in the year 1785, to the executors of John Todd, after his death.
Under these circumstances it is contended on the part of the city, that the claim to the surplus in the seventy acres is barred by time, admitting that any surplus exists.
The claim is certainly prosecuted at a very late period, More than half a century had elapsed after the
But if the vendor could in equity have demanded a re-conveyance of the surplus land, the lapse of time would be equally fatal to the claim. The act of 1782, establishing the town, vested the legal title to the land in the Trustees. Todd being at the time a member of the Legislature of Virginia must be presumed to have assented to the act, and was consequently bound by its provisions; indeed there is no doubt that it was passed at his instance. Whether the legislature could or
, The claim to the town lots is resisted upon the ground that an in-lot and an out-lot designated as those belonging to John. Todd, were sold after his death by Jane Todd, his widow and executrix, and the lots conveyed by the trustees to her vendee. This defense is established by the testimony.
It is contended by the plaintiff in error, that the lots thus conveyed were not those which had been allotted to Todd, and were considered'as his, but lots which-had been given to his widow after his death; and if they were the same lots that he wa" entitled to, that his executrix had no power to sell them, nor were the trustees authorized to convey the title to the purchaser.
It clearly appears that Jane Todd disposed of four lots, two in-lots and two out-lots, all of which were conveyed by the trustees to her vendees. Two of those lots were the same that were known and designated as belonging to her husband, John Todd, as one of the
It is argued however, that in cases of trust there is no limitation, and that the lapse of time does not bar this claim against the city. This doctrine however applies alone to cases where there is a direct, express and subsisting trust, of a purely equitable nature, and not to cases where the trust which once existed has been violated, and a suit is brought to obtain redress for the injury resulting from the breach of trust. Had the title to the property still remained with the Trustees or their successors in office, they would have held it in trust for those entitled to it, and the doctrine contended for, would then have had a direct application in a proceeding against the Trustees in a Court of chancery, to compel them to convey the legal title. But when they ‘
It may however be remarked as it regards these lots, that a presumption might be indulged, either that the will of John Todd authorized the widow, as his executrix or devisee, to dispose of them, or that she had done it with the consent of her daughter during her infancy, and after she had arrived at full age, had paid to her the price she had obtained for them. This presumption would seem to be sanctioned by the daughter’s having acquiesced for so long a time in the sale made by her mother, of which as well as her father’s right to the lots as one of the eai’ly inhabitants of the place, she must have been informed, as she resided all her life in or near the town of Lexington.
The claim to the streets in that part of the city that was extended over the land of Mrs. Wickliffe, which she had laid off into lots and streets, and sold and conveyed the lots to various .purchasers, is resisted upon the ground that by the act of dividing the land into lots and streets adjoining the town, and corresponding with the streets of the town in width and in name, and selling the lots to purchasers, referring in the deeds made to them to the streets thus laid off, and making them the boundary of the property sold and conveyed, she dedicated the streets to the use of the public, and placed them beyond her power and control.
It cannot be doubted that the situation of the lots with reference to the adjoining town, and the proposed
The deeds made by the proprietor to the purchasers of the lots, furnish the most conclusive proof of the facts necessary to sustain the rights of the purchasers to their full extent. When the deeds were made, the town had been extended so as to include the lots and streets within its limits. The deeds describe the lots as being in the town of Lexington, and bounded by the streets of the town, giving to them at the same time their appropriate names. This designation of them as streets in the town, by the proprietor, must be regarded as a conclusive dedication of them to that purpose, not depending upon implication merely, but established . by express testimony of the most permanent and unerring • character. A dedication of land for public purposes can be made by parol, and established by parol testimony; Barclay vs Howell’s lessee, (6 Peters,) Trustees of Dover vs Fox, (9 B. Monroe, 201.) Here however, the fact of a dedication, rests upon written evidence
The fact that the legal title to some of the streets has not been conveyed by the proprietor to the Trustees of the town, cannot impair the right of the purchasers or their grantees or the public at large. If the dedication did not per se operate to transfer the title to the Trustees of the town, still the proprietor held it as a Trustee, subject to this public use, and was as much bound to maintain it and preserve it from all disturbance, or diminution, as public Trustees would have been; (Rowan's Ex’r, vs Town of Portland, supra.) Nor does the fact that a conveyance of some of the streets was made to the Trustees of the town, impair the right to the others, or create a presumption against the existence of such a right. That conveyance to the Trustees was made several years after the sale and conveyance of the lots; and it is obvious from the testimony, that the omission to convey some of the streets was casual and not intentional, but that the deed would have been executed by the proprietor had it included all, instead of a part only of the streets.
The only remaining question relates to the small slip of land, sixteen feet wide, claimed by the city as Locust street.
About the year 1785, Mrs. Todd sold to Robert and John Parker, a lot of land on the South side of Main street, adjoining but outside of the town boundary, reserving however, sixteen feet between the lot sold and the boundary of the town as a pass-way from Main street to a Spring at some distance and on a branchy for the benefit of herself and her tenants who occupied her
This strip of ground was at an early period called Locust street. It was marked upon a plat of the town by that name as far back as 1808, if not previously. The right of the public to its use as a street or pass-way was unquestioned and uninterrupted, until this suit was instituted. The direct proof as to the object in leaving it undisposed of, its continued and undisturb
Wherefore the decree dismissing the bill is affirmed.