207 Ky. 142
Court of Appeals of Kentucky.
LOVILL v. HATFIELD.
Feb. 3, 1925.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Suit by Elizabeth Hatfield against George D. Lovill.
Judgment for plaintiff, and defendant appeals.

McCANDLESS, J.
Elizabeth Hatfield sued to quiet her title to 20 acres of land adjoining the city of Corbin. From a judgment in her favor the defendant, George D. Lovill, appeals. Both claim title through Roscoe Hatfield, who was a son of Wm. Hatfield, deceased.

In the division of the real estate of Wm. Hatfield among his heirs the master commissioner, E. G. Massingale, in December, 1910, conveyed several tracts to Roscoe Hatfield, two of which are in Knox county, the fifth tract being thus described:

"Beginning at a stone at the corner of the fence known as the Welsh tract; thence N. 18 W. 44 poles to a stone at the road corner to Elizabeth Reynolds' fence; thence S. 85 1/2 E. 50 poles to a white oak and black gum; thence N. 78 E. 30 poles to a gum and white oak; thence S. 18 E. 68 poles to a dogwood and maple; thence S. 88 W. 75 poles to the beginning, containing 24 acres, 3 roods and 35 poles."

On July 10, 1913, in consideration of a house and lot in Corbin conveyed to him by Rena Lovill, Roscoe Hatfield executed a deed to her, in which, according to defendant, he conveyed her all of the above tract of land, but in which, according to plaintiff, he only conveyed her 4 acres thereof; the description in the deed being:

"A certain tract of land lying and being in Knox county, Ky., and being all the tract of land conveyed to the party of the first part by E. G. Massingale, commissioner of Whitley county, by deed bearing date Dec. 24, 1910, which is duly recorded in Deed Book 64, at page 377, county clerk's office, and bounded and described as follows:

Beginning at a stone at the Barbourville road the corner to Elizabeth Reynolds' fence southwardly ______ feet to a stone in line with said Barbourville road; eastwardly ______ feet to the corner at the eastward line of the original tract; thence northwardly with said back line ______ feet to a gum and white oak, at the corner; thence westwardly with the line of the original tract ______ feet to a beech, corner to Elizabeth Reynolds' land, southwardly with her line ______ feet to white oak and black gum; thence westwardly with her line ______ feet to the beginning."

On the same day Rena Lovill conveyed this boundary to her son J. H. Lovill, who had conducted all the negotiations. Plaintiff claims that a stake was set at the second corner and the distances left blank in the deed, with the understanding that the lot should be surveyed and the distances ascertained and inserted; that later this was attempted, but the second line ran quite close to the rear corner of Reynolds' line; that J. H. Lovill claimed that this was to be parallel with the Reynolds' line, and a controversy arose.

Thereupon Roscoe Hatfield erected a fence along the line as claimed by him, cutting off 4 acres and a fraction to Lovill, and retaining the 20 acres now in dispute. Possession of this tract has since been retained by him and his vendee.

J. H. Lovill erected a residence on his part, and he and his mother lived thereon. Both of them are now dead. His father, J. S. Lovill, inherited from him, and has since died; leaving as his only heir the appellant, George D. Lovill.

In October, 1913, Roscoe Hatfield sold and conveyed a lot on the east end of this tract fronting on the Barbourville road to J. G. McCreary. In July, 1914, he conveyed to his mother, appellee herein, several tracts, including the land in dispute.

The conflicting claims are easily understood by a reference to the accompanying diagram:

There are six calls in each survey, the general direction being identical, the confusion arises from the fact that in the Lovill deed the courses and distances are not set out, and the second and third lines do not call for natural objects. It transpires that the calls can be applied to the entire boundary or to the four acres only.

Thus the original boundary begins at a stone corner to the Welsh land (1); thence N. 18 <> W. 44 poles to a stone at the road corner to Elizabeth Reynolds' fence (2); thence S. 85 <> E. 50 poles to a white oak and black gum (3); thence N. 27 <> W. 29 poles to a beech (4); thence N. 78 <> E. 30 poles to a gum and white oak (5); thence S. 18 <> E. 68 poles to a dogwood and maple (6); thence S. 88 <> W. 75 poles to the beginning, six corners appearing as indicated on the map.

The deed from Hatfield to Lovill reverses these calls. It begins at a stone at the Barbourville road (2), corner to Elizabeth Reynolds, and as claimed by plaintiff runs southwardly _______ feet to a stone in line of said Barbourville road (b), as claimed by plaintiff; thence eastwardly _______ feet to a stone in an established line of the original tract (c), as claimed by plaintiff; thence northwardly with said back line to a black oak and gum at a corner (5); thence westwardly with the line of the original tract _______ feet to a beech corner to Elizabeth Reynolds' land (4); thence southwardly with her line _______ feet to a white oak and black gum (3); thence westwardly with her line _______ feet to the beginning (2)--all except the first and second calls being identical with the first deed.

The dotted line from B to X runs parallel with the Reynolds' fence, being the one that plaintiff's testimony shows was claimed by J. H. Lovill. It is within plaintiff's inclosure.

It is clear that under this description the distance in the first call could be extended to the stone at Welsh's corner; and the second call would then be from that point to the dogwood and maple, and from thence on around the original boundary. Also, as stated above, the Lovill deed recites "and being all the same tract of land conveyed to the party of the first part by E. G. Massingale, commissioner of Whitley county, by deed bearing date December 24, 1910," and this would indicate the entire tract was conveyed.

But on the other hand the calls in the deed are equally consistent with plaintiff's contention. If the parties had intended to include the entire tract, it is singular that they gave the calls and general directions as in the old deed without giving the disstances or calling for the natural objects of the corners, a circumstance indicating that they did not intend to call for those points.

If the matter had stopped there, under the familiar rule that the deed should be construed most strongly against the grantor, the defendant would prevail, but with six of the lines of the deed left blank, and it thereby being rendered equally applicable to different theories of construction, it would seem that parol evidence is proper to explain the ambiguity thus created that the court may learn the true intention of the parties.

When this is done the evidence is convincing that J. H. Lovill did not claim to have purchased the entire tract, and did not interfere in any way with Roscoe Hatfield's possession, but on the contrary accepted the part allotted him, and told several parties he had no interest in the land claimed by Hatfield.

It must be remembered that J. H. Lovill conducted the negotiations with Roscoe Hatfield, and, though the land was first conveyed to his mother, she conveyed it to him on the same day, and that he was the owner at the time of the admissions as to title, so that whether he originally acted as agent of his mother, or acted on his own behalf, under the circumstances such admissions, if not otherwise objectionable, were competent against him and those claiming under him.

About the time the line was being run, both he and Roscoe Hatfield consulted an attorney in a friendly way, without either employing him. At that time there was no contention as to the second corner in Lovill's deed being the point now claimed by plaintiff, but Hatfield was claiming that the second call was at right angles with the Barbourville road, while Lovill claimed that it should run parallel with the Elizabeth Reynolds' line, and did not claim anything south of the line running parallel with the Reynolds' fence. Later he told the attorney he thought he could claim it all under the deed. In the light of this evidence we conclude that the construction claimed by plaintiff is correct.

We do not think the statute of limitations can be invoked, as the matter involved is simply the construction of the deed. Upon original submission a decree was rendered in favor of Lovill, but the order was not signed. While the record was in that condition, a motion was made to set aside the judgment and submission and permit additional proof to be taken. An order was entered setting aside the former order of submission and permitting additional proof to be taken. No specific mention was made therein of the unsigned decree, but it was ignored thereafter; other proof taken and final judgment rendered for plaintiff. In all these proceedings the unsigned decree was ignored, and in our opinion, it was in effect set aside.

Perceiving no error in the record, the judgment is affirmed.

Ky.App. 1925.
LOVILL v. HATFIELD.
268 S.W. 807, 207 Ky. 142



     

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