|Appeal from Circuit Court, Knox County.|
|Carter Vs Terrell|
Court of Appeals of Kentucky.|
CARTER et al.
TERRELL et ux.
Jan. 11, 1938.
Appeal from Circuit Court, Knox County.
Action for trespass to land by Gillis Terrell and wife against Mrs. Lude Elliott Carter and others, which was revived by widow and heirs of Gillis Terrell after his decease, and in which defendants counter-claimed that they had legal title to land which embraced part of that allegedly owned by plaintiffs. STANLEY, Commissioner.
On August 10, 1925, Gillis Terrell and wife sued Mrs. Lude Elliott Carter and others, alleging that "they are the owners" of a certain parcel of land on Eaton Fork of Indian Creek in Knox county, described by metes and bounds, and charging that the defendants had trespassed upon and damaged their land. The plaintiffs prayed that they be adjudged to be the owners of the land; the defendants be enjoined; and they have judgment for $200 damages. The answer traversed those allegations. As a counterclaim, it set up that the defendants had legal title to, were the owners and in the actual possession of, two parcels of land, which were also described by metes and bounds. It was charged that the tract described in the petition conflicts with and embraces portions of each of those parcels, and that to the extent of the lap the defendants were the owners of the legal title by record and adverse possession. The defendants asked the dismissal of the petition and a transfer of the case to equity, with a quieting of their title. Terrell gave his deposition and died before the submission of the case. It was revived by his widow and heirs and judgment rendered in August, 1934, in favor of the plaintiffs.
No other evidence was heard than that of Terrell, and the appellants seek a reversal of the judgment upon the ground that neither the pleading nor the proof supports the judgment. Terrell deposed that he had owned the "land in controversy" for nineteen years, having received a deed to it from his father, in consideration for which he agreed to pay his father each year during his life 12 1/2 bushels of sound corn. He filed his deed as a part of his deposition. The parcel was a part of a 100-acre tract which his father had patented April 25, 1882. He also filed the patent and a plat made by a surveyor for his father. The witness stated that he was present when the survey was made and of course knew the lines and corners. He and his father had cleared part of the land at the time it was patented, and they had used it ever since as a farm, and cut timber off it without interference. In answer to the question, "Do you own all the boundary that is in dispute?" He answered, "Yes, I don't think it laps on any of the rest."
The argument is that: (1) The pleading and evidence that the plaintiffs "owned" the property is only a conclusion, and (2) there is no description in the evidence so that the land claimed can be identified as the same described in the petition.
In the matter of insufficient identification of the property, here the witness, Terrell, referred to the "property in controversy" throughout his testimony. He filed his deed, patent, and survey, which he stated covered that very property. Those instruments are not in the record. The appellant having failed to bring them here, under well- established rules, we must presume that a comparison would show the land covered by them is the identical property described in the petition, and that the evidence supports the judgment of the chancellor. BThe defendants did not undertake to deny the evidence in any manner or degree, or endeavor to establish any title in themselves.
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