16 Ky.L.Rptr. 712
Court of Appeals of Kentucky.
SULIVAN et al. v. EVANS et al.
Feb. 14, 1895.
ACTION: Judgment on appeal reversed, and on cross appeal affirmed.


Appeal from court of common pleas, Knox county.
"Not to be officially reported."

Action by Aaron Sulivan and others against G. W. Evans and others to recover possession of a tract of land. From a judgment for plaintiffs for a portion of the tract, plaintiffs appeal, and defendants bring a cross appeal.

LEWIS, J.
February 26, 1891, appellants children and heirs at law of John R. Evans, who died in 1871, brought this action against heirs at law of Joseph Evans, who died in 1876, seeking conveyance of title, and to recover possession of a tract of land, ascertained by survey to contain 95 acres. They file, as evidence of their claim, a title bond, bearing date July 6, 1860, which is fully proved to have been executed by Joseph Evans to his son John R. Evans, for the recited consideration of $300, which, in absence of competent proof to the contrary, must be treated as having been as recited in the instrument actually paid. The lower court rendered judgment in favor of plaintiffs for 67 acres of the tract, but against them as to 28 acres, and from that judgment they have appealed, a cross appeal having been granted to defendants, who contend it was error to adjudge any part of the land to plaintiffs.

The evidence shows satisfactorily that, about 1865, John R. Evans took possession of the land, and cultivated and controlled it up to his death, and that those claiming under him have had possession ever since; at least to extent of 68 acres there can, it seems to us, be no serious question. Consequently, according to both the statute and decisions of this court, limitation of neither 30 nor 50 years is a bar to recovery of legal title to any part of the land, unless it be the 28 acres; and we do not see why plaintiffs, if entitled to any part, should not recover the entire tract. There is some proof that Joseph Evans continued up to his death to cultivate about 12 acres within what the lower court seems to have recognized as boundary of the 28 acres, and used timber at will. But he did not reside within boundary of the 95 acres, and it cannot be inferred or assumed from the fact of his cultivating a part that the claim of ownership or possession by John R. Evans was in fact or law restricted to less than entire boundary of the tract he had purchased. In fact, there is no evidence that the 28 acres were ever identified or separated from residue of the tract by any marked and recognized boundary. It appears from her testimony that the widow of John R. Evans had possession of the land from date of her husband's death until 1882, when, by a writing filed in this action, she conveyed her dower right in the entire tract to G. N. Evans, one of the defendants, and he has had possession thereby acquired ever since. It is true he states he obtained possession of the 28 acres by consent of the other heirs of Joseph Evans, but he does not show what were the terms or consideration of such consent, nor the more important fact that they had any right to consent. At all events, that transaction could not change the attitude he occupied, in virtue of the written contract with the widow of John R. Evans, of an amicable to an adverse holder of the possession. It seems to us sufficiently established that John R. Evans and those claiming under him have had possession in law and fact of the tract of 95 acres from 1865 to bringing of their action, and are entitled to the conveyance sought for. There is an attempt to show the sale by Joseph Evans to John R. Evans was fraudulent and void, and that the title bond was voluntarily surrendered; but there is no evidence of either fact.

Wherefore the judgment on appeal is reversed, and on cross appeal affirmed; the case is remanded for further proceedings consistent with this opinion.

Ky.App. 1895.
SULIVAN et al. v. EVANS et al.
29 S.W. 619, 16 Ky.L.Rptr. 712


     

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