25 Ky.L.Rptr. 927
Court of Appeals of Kentucky.
Nov. 11, 1903.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by H. H. York against the East Jellico Coal Company. Judgment for defendant, and plaintiff appeals.

This action was instituted by appellant against appellee to recover a sum of $7,000, the alleged value of 4,000,000 bushels of coal mined and wrongfully converted by appellee from 13 acres of land in Knox county, claimed to be owned by him. The answer placed in issue the title of appellant to the land in question, and set up title to it in the company by conveyance from the heirs at law of one Jackson Campbell, who, it was alleged, died owning it; and pleaded certain matters of estoppel against appellant's claiming that Jackson Campbell did not own the land at his death. Upon trial of the case the circuit judge, after appellant's evidence was in, peremptorily instructed the jury to find a verdict in favor of appellee, who was defendant below. Complaining of this, appellant is here on appeal. In 1867, appellant obtained a patent from the state of Kentucky for a boundary of land containing 100 acres lying on the waters of Brush creek, in Knox county, Ky. It was admitted that the land involved in this litigation was contained within the boundary of this patent. On the 20th day of August, 1878, Michael Girdner having theretofore obtained, in the Knox circuit court, a judgment against appellant and John Hoskins for the sum of $100, with interest at the rate of 6 per cent. per annum from the 15th day of August, 1876, until paid, and $9.20 costs thereon, an execution was caused to be issued in the case, which came into the hands of the sheriff of Knox county, who was proceeding to levy the writ upon the personal property of appellant, whereupon he executed and delivered to the sheriff the following writing:
"John Lay, S. K. C., has in his hands an execution in favor of M. Girdner and against H. H. York and John Hoskins issued from the Knox circuit court. I have this day given up and directed to be sold to satisfy said fi. fa. in preference to selling personal property a tract of land patented to me lying on the waters of Black Branch and Hopper's or Hoskins' Branch of Brush creek, containing 100 acres, more or less, except 20 acres sold to Jackson Campbell, and bounded on the south by Abijah Hoskins, on the east by Wm. Smith, on the north by James Owens, on the west by Jackson Campbell. [Signed] H. H. York."
It was admitted that the land referred to in this writing was the same patented to appellant in 1867. The sheriff, having had the tract of land surrendered to him for sale appraised, sold it at public outcry on the 28th day of September, 1878, and it was purchased by S. M. Perkins for $6.50. The land not having been redeemed by the execution debtor within the time allowed by law, the sheriff, on the 25th day of July, 1887, conveyed it to the purchaser, who took possession of it. On the 25th day of May, 1895, appellee purchased the 20 acres deeded to Jackson Campbell from his heirs at law (he having died in the meantime), who conveyed it by quitclaim deed. After surrendering the land covered by his patent to the sheriff for sale to satisfy the execution, appellant left the state of Kentucky, and was absent for 20 years, with the exception of one or two short visits. He paid no attention whatever to the land, never listing it for taxes, or in any way, so far as this record shows, exercising any dominion over it, until after it was purchased by appellee, who owned land adjoining it, and who built a railroad to it, and opened up a coal mine, thereby bringing it into market, and giving it a value. Appellant, while admitting the recitation in the paper executed by him surrendering the property to the sheriff for sale that he had sold 20 acres of the patent to Jackson Campbell, contended in this action that he was mistaken on this point, and that he only sold Campbell 8 acres, and the balance of the reservation belonged to him. The sheriff had returned the paper containing the recitation of the sale of the 20 acres to Jackson Campbell with the execution, and it was a part of the record. Upon faith in the truth of the recitation appellee purchased the land from the heirs of Jackson Campbell, and made improvements upon it worth many times its original value.

Appellant is clearly estopped from setting up, as against appellee, any claim to the 20 acres of land recited to have been conveyed to Jackson Campbell, as appellee had a right to rely on the truth of the record he had made, and had relied on it. Even if it were true that appellant was mistaken as to his having deeded Jackson Campbell 20 acres, while in fact he only conveyed him 8 acres, it would not avail him in this action without regard to the question of estoppel. The paper which he delivered to the sheriff surrenders up for sale under the execution all of the patent except what he had conveyed to Jackson Campbell. The sheriff so sold it, and Perkins so purchased it. It resulted, therefore, that Perkins obtained by his purchase all of the patent except that owned by Campbell. Afterwards Perkins and Campbell agreed on a line dividing the property between themselves, and it follows, if Campbell got more land than he was entitled to in the division, he got what belonged to Perkins, and not what belonged to appellant. Perkins and appellee, between them, owned the whole patent, and this excludes appellant from any ownership therein.

Appellant was bound to show title in himself in order to recover. His own evidence showed that all of the land contained in the patent (his only muniment of title) had been conveyed to Perkins and Campbell by the sheriff's sale and his own deed, and therefore the trial judge correctly instructed the jury to find for appellee.

The judgment is affirmed.

Ky.App. 1903.
76 S.W. 532, 25 Ky.L.Rptr. 927


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