Court of Appeals of Kentucky.

WEBB et al. v. SHACKELFORD.

March 26, 1895.



Appeal from circuit court, Clay county.

"Not to be officially reported."

Action by Bates Shackelford, a minor, against William Webb and others, for possession of land. From a judgment for plaintiff, defendants appeal. Reversed.


HAZELRIGG, J.

In 1838 Daniel Bates obtained a patent from the commonwealth for 300 acres of land on the waters of Horse creek, in Clay county. Upon his death, in 1844, an action in the Clay circuit court was brought for the settlement of his estate, and in 1851 an allotment of dower was made to his widow in and to all the decedent's lands on Horse creek and waters, supposed to be about 1,130 acres. The widow died in 1878. Bates and wife left surviving them a daughter, Mary, who reached her majority in about 1860, and shortly thereafter married James T. Shackelford. She died in 1866, leaving as her only heir the appellee, Bates Shackelford, who, in 1881, while still a minor, instituted this action for the 300 acres of land patented to his grandfather in 1838, and allotted to his grandmother in 1851. Neither the patentee, his widow, his daughter Mary, nor his grandson, the appellee, ever entered on or had actual possession of any part of this 300-acre tract. Nor, indeed, do the calls of the survey and patent issued thereon embrace the land sued for, and to have it do so it is alleged in the petition that one of the calls, described as "S. 50 <<degrees>> 225 poles," should be "N. 50 W., 225 poles," and the petition asks for the correction of this call of the patent. The proof discloses that a part of the land in controversy is embraced in a patent issued in 1855 to one Gilbert, and that ever since that time it has been in the actual adverse possession of the patentee and his vendees, the appellants. The balance of it, since 1860, at least, has been in the actual adverse possession of the appellants and their vendors, who claimed it under a survey entered in 1848, and a county warrant, in virtue of which a patent therefor issued in 1874. The greater part of the land, when the suit was brought, had been under cultivation for from 20 to 30 years, and used and occupied as their homesteads by the junior patentees. Under these circumstances, the elder patent must yield to the junior. That the life tenant lived until 1878 does not matter. It is simply a question of the better title. The patent of 1838 did not embrace the lands of the appellants, and is only made to do so by a correction attempted to be made some 43 years after its issual, and when the lands had been surveyed as vacant lands, and patents granted therefor many years before, and when they had been in the actual adverse possession of the appellants for at least 15 years. It is contended that "possession of land, under a deed, for more than fifteen years, will not give a title to such portion as lies beyond the line therein described, if this was occupied by mistake, supposing it to be covered by the deed." Admitting this principle, we do not perceive its application. Here the boundaries of the junior patents and the inclosures of the patentees were well known, and there was no occupancy or claim beyond the limits of the patents. The effort to correct the patent comes too late, in the face of these junior patents, and the equities of these actual occupants of the lands. Let the judgment be reversed, with directions to dismiss the petition.

Ky.App. 1895.

WEBB et al. v. SHACKELFORD.



     

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