20 Ky.L.Rptr. 1670
Court of Appeals of Kentucky.
March 7, 1899.
ACTION: Reversed.

Appeal from circuit court, Bell county.
"Not to be officially reported."
Action by J. J. Gibson and others against the Four Mile Land & Coal Company to quiet title to land.
Judgment for plaintiffs, and defendant appeals.

Appellees brought this suit December 5, 1891, to quiet their title to about 100 acres of land in Bell county, near Pineville, embraced within a patent issued August 24, 1816, to Isaac Shelby, and conveyed by him to James Renfro. Appellant, by its answer, denied the title of appellees to the land, alleging that it owned and had possession of the land. This answer was made a counter- claim against appellees, and judgment was prayed quieting appellant's title to the land. Appellant did not show a paper title, but it introduced proof showing that James Dorton owned and lived on a tract of land adjoining the land in dispute, and held possession of it; that James Renfro filed suit against him, and the suit was settled between them by Dorton's letting Renfro have a tract of land he owned on the other side of the river for the land in controversy; that this transfer was drawn up by an attorney, and witnessed by two witnesses, but was never recorded, and cannot now be found. After this, Dorton conveyed the land to John Patton, from whom, by regular conveyances, it passed to appellant. On the other hand, appellant has a paper title from James Renfro, derived in this way: After his death, in a suit between his two sons, his lands were sold at commissioner's sale, he owning several large bodies of land; and, among other tracts, this tract was bought by Josephus Renfro, who conveyed it, with a number of other tracts, to the father of appellees. The appellees have never lived on the land, or adjoining it; and neither they, nor any of those they claim under, had actual possession of it prior to December 5, 1891, or a few days theretofore, when, with a view to bringing this suit, they entered upon the land, and began the erection of a little cabin. The proof shows that the land lies on the side of the mountain north of the Cumberland river, and between the top of the mountain and its base. Between the land in controversy and the river lies another patent, known in the record as the "Martha Miller Survey." The proof shows that James Dorton's house was situated on the Martha Miller patent, near the line of the Shelby patent, and that his clearing extended, opposite his house, clear across the Shelby patent; and that, as far back as 1848, this cleared land was inclosed. The fence then looked old, and Dorton's orchard was largely upon the land in dispute. The point where appellees built their cabin to bring this action to quiet their title is in this old clearing of Dorton that was in cultivation, according to the testimony, as far back as 1830. Dorton claimed all the land from the river out to the top of the mountain, and there is proof that Renfro acknowledged this land to be Dorton's. This proof is confirmed by the fact that Dorton cleared all of it that was fit for cultivation. The surveyor that ran the land out in this case testifies that the line claimed by appellees as the dividing line between them and appellant runs for 290 poles through old, cleared land. Dorton also cut timber from all parts of the land in controversy. So did Patton, to whom Dorton conveyed; and so did James Patton Gibson, who married Patton's daughter, and bought the land when sold at the commissioner's sale for the settlement of his estate. Patton built another house (the old Dorton house having burned), where he and those claiming under him have lived since about the year 1848 or 1849. This house is also on the level land embraced in the Miller patent, but his orchard and improved land were in a large part on the land in controversy.

The testimony is conflicting, and the case is by no means as clear as it should be, owing, evidently, to the fact that this mountain land was not considered of much value until within recent years, and the parties were, therefore, not so particular in preserving and recording the evidences of their title as they would otherwise have been. It is earnestly argued that there was no exchange of land between James Renfro and James Dorton, and that the subscribing witness, who has sworn to this transfer, has sworn falsely. But his testimony is wholly disinterested, and he is corroborated by another witness, who swears that he was also present, and states substantially the same facts. Several other witnesses testify of hearing of the transaction either from Dorton or from Renfro. A number of the neighbors are unanimous in their testimony that the land was known as "Dorton's Farm"; and from the extent of his clearing and inclosures, and the manner of his use of the land for the length of time that he held it, it is hard to escape the conclusion that this transfer was really made, and that the trouble in this case grows out of the fact that it was lost, and not recorded, owing to its not being regarded of any great value. Renfro appears afterwards to have the land that the witnesses say Dorton traded him for this land, and no other explanation is made of how he came by it. The land in controversy was valuable chiefly for the timber on it, and it appears that over 20 years ago all the timber on the land worth cutting had been cut and hauled off, and that what is now on the land is wholly second growth. Appellees lived near by. The land was in plain view of a state road. They took no legal steps to prevent the timber from being cut off, or to get possession of the land, until some time after the Pineville boom began. They were present at the commissioner's sale in 1869, when the land was sold in the suit to settle John Patton's estate, and knew that the land in controversy was included in that sale. They explained their silence by saying that their father was living, and they had acquired no interest in the land; but he was also present. The sale was on 12 months' time. Gibson gave about $8,000 for the farm, and yet he was allowed to pay his bond and get a deed without any interruption by appellees or their father. Though appellees make some proof that they asserted their claim to the land from time to time, and that Patton and Gibson, and those claiming under them, recognized in some measure their right to some land above them on the side of the mountain, the clear preponderance of the proof shows that the possession of those appellant claims under was adverse and unbroken, that the arable land was worn out, that the orchards died of old age, and that all the timber worth having was cut off the land by appellant, and those it claims under, without appellees resorting to any legal action. Under such circumstances the presumption in favor of the grant from Renfro to Dorton should prevail, and the conclusion is almost inevitable that appellees abandoned all claim to the land, and would never have asserted it, but for the unexpected value it suddenly assumed.

It appears in the record that on February 28, 1844, James Renfro sued James Dorton in ejectment for this land, alleging that he had ejected him from it with force and arms on January 10, 1844. To this suit Dorton pleaded not guilty. This is the suit which the witnesses say was settled as above explained. The case remained on the docket until the March term, 1848, when a consent order was entered that Renfro should recover the land, but pay the cost of the suit. At the same term of the court John Patton appeared by attorney, and moved the court to set aside this order, showing that he had bought the land from Dorton previous to the entry of this order. The evidence shows that Patton was a brother-in-law of Dorton's; that Dorton conveyed the land to Patton to avoid the payment of a debt, and fell out with him after the deed was made. After this Renfro died, and, the case having been revived, Patton's motion was sustained, and the consent judgment set aside. Patton then died. An order of revivor was made against his heirs, some of whom were infants and others nonresidents. At the March term, 1855, the case was dismissed against those not served. No other steps were taken until the April term, 1857, when an order was entered, stating that it was agreed by the parties that the Miller line was the true line, and that the surveyor of Knox county should go upon the land, and establish the line. Who made this agreement is not shown. The order was not executed, and at the September term, 1864, it was ordered, on motion of defendant, that the plaintiff give security for costs on or before the next term of the court. At the next term the case was filed away. The agreed order above referred to, that the Miller line was the true line, is relied on by appellees as conclusive of their rights. But we do not think it should be given this effect, for the reason that the order was never carried into effect, and the case was dismissed without any line being established. The parties remained in possession as they were before, and, as part of the defendants were infants, and others nonresidents, who had not appeared, and never appeared in the action, we think the only reasonable inference from the whole record is that the alleged interlocutory agreement was, for some reason, abandoned. It appears in this record from the affidavit of James B. Dorton, made in 1847, that he had been in the actual adverse possession of this land for 25 or 30 years before that, and this testimony is sustained by the facts proved in this case. After that suit was dismissed, those under whom appellant claims remained in the peaceable possession of this land, and no legal steps were taken by appellees to get possession, or protect their rights, until they entered to build the little cabin, with a view to bringing this suit to quiet their title in December, 1891. Under such circumstances we do not think that they have made out a case warranting the interposition of the chancellor in their favor. Equity aids the vigilant, not those who have slept on their rights. The property has passed into the hands of others, who bought it at a large price, when appellees were remaining silent, and ought to have known what was liable to happen, and great injury may be done innocent parties if the relief sought by them be now granted. Under all the evidence, we think appellant has made out the better title to the land, and that at this late day the long possession of it, and of those it claims under, should not be disturbed. The judgment is therefore reversed, with directions to the court below to dismiss appellees' petition and quiet appellant's title to the land.

Ky.App. 1899.
49 S.W. 954, 20 Ky.L.Rptr. 1670


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