23 Ky.L.Rptr. 1556
Court of Appeals of Kentucky.
SWAFFORD et al. v. HERD'S ADM'R et al.
Dec. 11, 1901.
ACTION: Affirmed.


Appeal from circuit court, Clay county.
"Not to be officially reported."
Action by Gideon Swafford and others against the administrator of Hugh Herd and others to recover land.
Judgment for defendants, and plaintiffs appeal.

O'REAR, J.
This action was brought by appellants to recover the possession of a tract of land in Clay county, and to recover for the value of timber cut therefrom by appellees. Appellants' title was denied, while appellees justified under an adverse title as well as the statutes of limitation and of champerty. Among the conveyances constituting links in the chain of appellants' title were deeds and proceedings that were rejected, as follows: Mariah McKean, who was a married woman, living in this state, at one time owned an interest in the title claimed by appellants. In 1858, while under the disability of coverture, she and her husband executed a power of attorney to Duncan McLead, authorizing him to convey, and under that power he did attempt to convey, her title to the land in suit.

Ky. St. � 508, is as follows: "Any married woman, resident elsewhere than in this commonwealth, may, by agent, convey any interest she may have in personal or real estate, situate in Kentucky, and which she could lawfully convey in person. But to make such conveyance effectual, it must be made in virtue of a power of attorney executed and acknowledged, as deeds by married women are by law required to be." Under this statute and one similarly worded, this court has held that a married woman in this state cannot devest herself of title to her general real estate by deed executed under a power of attorney, her power of attorney being void. The doctrine seems to be equally well settled in other jurisdictions.

It appears that James Johnson owned an undivided interest in appellants' title to the land. In 1857 the sheriff of Clay county, it is alleged, sold this land under various writs of fieri facias issuing from the Clay circuit court and directed to him. The deed from the deputy sheriff making the sale to the purchaser, Dr. William Reid, was exhibited. It was objected to upon the ground that the judgment roll and execution were not also exhibited. We think the objection well taken.

As stated, appellants claim under the senior grant for 100 acres issued to Johnson in 1834. Appellees claim under the junior grant for 200 acres issued to Herd under a survey made in 1848. The two patents lap, the junior covering most of the senior. More than 20 years before the filing of this suit appellees entered upon the junior grant, and set their improvements thereon, inclosing from 25 to 40 acres of the lap, claiming possession of the whole of the marked boundary of their patent. At that time appellants' patentee was not in possession, nor had he ever taken actual possession, of any part of the senior grant. The case of McDowell v. Kenney's Heirs, 3 J. J. Marsh. 518, seems to us to be conclusive of this question. In that case the facts were: "James Kenney's patent, which covered the land in contest, was also read to the jury, and the defendants proved that about 34 years previous to that time their ancestor, the patentee, had, by his tenants, actually settled upon that part of his patent which interfered with that under which plaintiffs claimed, and had cleared and inclosed a part of it, and had occupied same until his death, and that the defendants had ever since been in the possession of it; that at the time of entering on said interference he did it with the intention of reducing the whole of his patent boundary into his actual possession. The land in contest, however, was woodland," and not inclosed till within the statutory period of limitation. Said the court: "That a patentee who enters upon land contained within the bounds of his patent, with an intent of taking possession of his whole claim, shall be considered as in possession, to the full extent of such claim, has been fully established by the decisions of this court.

From the foregoing authorities there may be fairly deduced this rule: The senior grant carries to its patentee the superior right of possession to, and, in contemplation of law, the constructive possession of, the land embraced by it. Should the patentee under the senior grant, or any one claiming under him, enter within his patent, reducing any part of it to actual possession before an entry under the junior grant, such actual possession, unexplained, will be deemed to be coextensive with the patent boundary. Should the junior patentee enter upon the lap before any entry by the senior patentee within his patent, the junior claiming to the extent of his patent boundary, his inclosure within the lap with such claim will give him possession to the extent of his claim, and, if he continues such adverse claim and possession for 15 years uninterruptedly, his title to all the land within his patent is perfected as against the senior patentee, and this will be true notwithstanding occasional entries by the senior patentee for the purposes of cutting timber, raising rock, or operating sugar camps.

From the foregoing it follows that the statute of limitation afforded appellees a complete bar against appellants' claim, and, the circuit court having so adjudged, its judgment is affirmed.

Ky.App. 1901.
SWAFFORD et al. v. HERD'S ADM'R et al.
65 S.W. 803, 23 Ky.L.Rptr. 1556



     

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