17 Ky.L.Rptr. 737
Court of Appeals of Kentucky.
HENDRICKSON et al. v. BOREING.
Oct. 12, 1895.
ACTION: Reversed.


Appeal from court of common pleas, Bell county.
"Not to be officially reported."
Action by Elizabeth Hendrickson and others against Vincent Boreing and others for possession of land.
From a judgment for defendant Boreing, plaintiffs and the rest of the defendants appeal.

LEWIS, J.
In 1855 there was patented to Noah Hendrickson a tract of land, of 100 acres,- though it now appears there was a greater quantity,-which he held, and claimed to a well-defined boundary, until his death, in 1863, and was so held thereafter by his widow and heirs at law, until 1878. At that time the county surveyor, employed to lay off and divide the lands of decedent between his widow and children undertook to resurvey the tract according to actual calls of the patent, but, failing, by reason of his own lack of knowledge on the subject, to so run the lines as to close the survey, informed them the patent was worthless, and passed no title to the land. Believing that representation, the heirs at law abandoned their claim for several years; and three sons of the patentee immediately proceeded to appropriate, as vacant land, and obtain patents for, the entire tract, each of the three patents being for 200 acres. This action was brought July 15, 1891, by Gillus Hendrickson, Elizabeth Hendrickson, and Sarah J. Orr (her husband uniting), three of seven children and heirs at law of Noah Hendrickson, to quiet their title to, and have set apart to each of them, one-seventh of said tract of land. To the action, besides the three brothers mentioned, appellee (Vincent Boreing) and heirs at law of Woodson Begley were made defendants. Boreing, it appears, claims to be purchaser and owner, under the three junior patents mentioned, of the entire tract, except the interest of Sarah J. Orr, which the heirs of Woodson Begley claim in virtue of an alleged purchase made by him. But it may as well be mentioned now that, by the judgment rendered in the action, they recovered, instead of an undivided interest in the land, a personal judgment for money and enforcement of a lien on the land against Sarah J. Orr and her husband. Consequently the heirs at law of Woodson Begley are not necessary parties to this appeal, in which is involved simply the question of title of appellants to the land, that appellee, Boreing, is now alone contesting.

Although plaintiffs ask for correction of a mistake in one call of the patent, it is not indispensable that that be done, because, according to rules repeatedly sanctioned and applied by this court, the patent boundary may be run and fixed so as to cover and include the tract in controversy without reforming the patent as to the call referred to. The statute of limitation is therefore no bar to the right of plaintiffs to maintain this action. The beginning corner of the survey is proved and identified beyond question, as is the case of all but one of those following, up to and including corner No. 8. But the call from the latter, which is described and identified as three chestnut oaks, is "north, 15 east, 128 poles, to a stake in R. Hendrickson's line," when it is placed beyond dispute that the correct course, and the one followed by the original surveyor, is "south, 15 east, 128 poles," which leads to R. Hendrickson's line, and thence with it to beginning, closing the survey and corresponding with figure of original plat; whereas, to follow the course of actual patent call, R. Hendrickson's line, the location of which was then and is now well known, would never be reached. But, independent of his patent, Noah Hendrickson, and after his death his widow and heirs at law, held actual, continuous possession, and claimed the tract of land, to marked, described, and known boundary, from 1855 to 1878, -longer than necessary to give a possessory title. For he, at date of the patent, owned and held possession of an adjoining tract, of 181 acres, being the identical R. Hendrickson's tract called for in his patent; and, as heretofore held, such actual possession and claim of ownership extended to and included, in legal contemplation, the tract in question.

There can be no question of the right of plaintiffs to maintain this action, which is for the double purpose of quieting their title, and division of the land between them and those who own or claim other portions thereof. It is insisted, however, that Gillus Hendrickson had previously sold and conveyed to his brother his undivided seventh of the land. But it seems to us plain that the parties to that deed had in mind the purchase and sale of his interest in the tract of 181 acres, and not in the tract in question, and such is the fair import and construction of the deed.

In our opinion, plaintiffs are invested with title, each, to one-seventh of the tract in question, and to division as prayed for. Wherefore, the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.

Ky.App. 1895.
HENDRICKSON et al. v. BOREING.
32 S.W. 278, 17 Ky.L.Rptr. 737



     

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