TWO SEPERATE CASES BOTH ARE DEAN VS. MESSER


Appeal from court of common pleas, Knox county.
Action by G. M. Dean and others against T. J. Messer.
From a judgment for defendant, plaintiffs appeal.
ACTION: Affirmed
Court of Appeals of Kentucky.
DEAN et al.
v.
MESSER.
March 20, 1895.

GUFFY, J.
On the 17th of November, 1890, G. M. Dean et al. instituted this suit in the Knox court of common pleas against the appellee, T. J. Messer, to recover a certain tract of land alleged to be wrongfully held by defendant. The defendant answered, and denied plaintiffs' title and right to possession, as well as denying that he held the land wrongfully. T. J. Messer claimed that he and those under whom he held had had the adverse possession of the land for 20 years under title, and from plaintiffs' ancestor. In a third paragraph, defendant in substance averred that plaintiffs' ancestor, Isaac Dean, in his lifetime, sold the land in contest to Mary Rich, and executed to her a title bond for conveyance, and that she paid to him the purchase price for said land, and that he (T. J. Messer) was then the owner of all the right and title of said Mary Rich, and made said answer a counterclaim against the plaintiffs, averring that they were the only heirs of said Isaac Dean deceased.

Defendant also, on June 1, 1891, filed an amended answer, in which the same averments were made, and in which he again denied that plaintiffs were the owners or entitled to the possession of the land, but admitted that the legal title only was in plaintiffs, and claiming the land as remote vendee of Mary Rich, and asking for judgment for a conveyance of same.

Defendant also filed a second amended answer, in which he again alleged that plaintiffs' ancestor had sold the land to Mary Rich, and described the land by metes and bounds, and also set out in detail the sale to Rich, and from Rich to George Dean, executor of Abraham Dean, and from him to Elizabeth Dean; and avers that she, by will, devised same to Isaac Dean, and by Isaac Dean to him, T. J. Messer, and averred that the land had been in the continuous possession of him, and those under and through whom he claimed, from 1868; also filed a paper purporting to be a writing from Isaac Dean, purporting to sell the land to him; also a paper from George Dean on same subject.

To the amended answer a demurrer was filed, which was sustained, and defendant filed another amended answer, in which he still and more specifically asserted claim to the land, and also averred a purchase and conveyance from Mary Rich. On the next day the cause was submitted for judgment on the pleadings, and the court dismissed the petition, and rendered judgment for defendant's cost against plaintiffs, and from that judgment plaintiffs have appealed, and ask a reversal, and insist that the pleadings authorized a judgment for plaintiffs.

It seems that the submission was on plaintiffs' motion, hence they cannot complain on account of the submission. If it be conceded that the burden was on defendant to sustain or make good his defense, yet, as no denial was made by the plaintiffs, all the allegations of the answers must be taken as true, except such as were disposed of by the demurrers. The fact that the legal title was in the plaintiffs was not, of itself, sufficient to authorize a recovery, if in fact Isaac Dean, through whom plaintiffs claim, had sold the land to Mary Rich, and if she and her vendees, immediate and remote, had held the land, as alleged by defendant, which allegations were not denied by appellants.

Judgment affirmed.



SECOND CASE
Appeal from court of common pleas, Knox county.
Action by G. M. Dean and others against T. J. Messer.
From a judgment for defendant, plaintiffs appeal.
ACTION: Affirmed
Court of Appeals of Kentucky.
DEAN et al.
v.
MESSER.
March 20, 1895.

GUFFY, J.
This action was instituted in the Knox court of common pleas by appellants for the recovery of a tract of land alleged by them to be wrongfully held by the appellee, T. J. Messer. The defendant by answer and amendments thereto denied plaintiffs' right to recover, and claimed the land. The pleadings and issues herein are substantially the same as those made in an action of the same parties plaintiffs against the same defendant, and in the same court, and appealed to this court, and this day decided.

The opinion in that case is adopted as the opinion in this case, so far as the law and material facts are involved. The answer and amended answers of defendant (after the third paragraph of the first answer was adjudged insufficient), not being denied by reply, were sufficient to authorize the judgment appealed from. Judgment affirmed.



    

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