25 Ky.L.Rptr. 139
Court of Appeals of Kentucky.
ELLIOTT et ux. v. HAUN et al.
June 3, 1903.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Henry Elliott and wife against Jacob Haun and others.
From a judgment for defendants, plaintiffs appeal.

BURNAM, C. J.
The appellant Mary Elliott brought this suit against the appellees in the Knox circuit court on the 15th day of August, 1891, claiming to be the owner and in possession of the boundary of 28 1/2 acres of land lying on the waters of the Cumberland river, in Knox county, from which she alleged the defendants had cut and removed a great number of valuable chestnut trees, and laid her damages therefor at $300. The defendant, in his answer, denied plaintiff's alleged ownership of the land from which the trees were alleged to have been cut, or that they had cut any timber from any land belonging to the plaintiff. He further alleges that he is the owner of the land in controversy, and held title thereto by deed from Rich Adams, bearing date of February, 1884, and pleaded that he and those under whom he claims have continually occupied the land set out, claimed and described in plaintiff's petition, for more than 30 years last past, and relies upon the statutes of limitation in bar of plaintiff's petition. The pleadings were made up, and a great deal of proof taken, and the case finally submitted for judgment at the January term, 1902, of the Knox circuit court, when it was adjudged that plaintiff's petition should be dismissed, and she has appealed.

It appears from the record that Acel Elliott, the father of the appellant Henry Elliott, prior to his death, in 1850, was the owner and in possession of a tract of 455 acres of land on the Cumberland river, in Knox county, Ky., which embraced the 28 1/2 acres from which it is alleged the trees sued for in this section were cut, and that soon after his death this tract of land was sold to satisfy a judgment recovered against his executors by G. M. and Rich Adams. At this sale the appellant Henry Elliott and his brother-in-law, Fisher, became the purchasers, and divided the land between them. In the division there were allotted to Fisher 240 acres of land, and to Henry Elliott 215. The 215 acres allotted to Henry embraced the 28 1/2 acres claimed by Mary Elliott, and are identical with the boundary now claimed by the appellee Haun. At the August term, 1874, of the Knox circuit court, a judgment was entered in the case of Richard Adams against Henry Elliott, and Henry Elliott and wife against Richard Adams, decreeing a sale of this same tract of 215 acres of land, which had been allotted to Henry Elliott in the division made with Edward Fisher, to satisfy a judgment in favor of Adams against Henry Elliott. During this suit the appellant Mary Elliott filed her petition to be made a party, in which she set out the proceedings in the case of G. M. and R. Adams against Acel Elliott's administrator, the sale of the 450 acres of land to satisfy the judgment rendered in that action in favor of the Adamses, its purchase by her husband and his brother-in-law, and alleged that her father, James Fermillion, had furnished the money to pay for the land allotted to Henry Elliott, under an agreement that the title therefor was to be made to her and her children, and denied the right of Adams to subject this land to the payment of Henry Elliott's debt. Her claim seems to have been thoroughly litigated in that proceeding, and the decision was adverse to her contention. Adams bought the 215 acres of land at the sale rendered pursuant to the judgment in that proceeding, and the possession was voluntarily surrendered to him on the 28th of March, 1877, by the plaintiffs, as appears from their written agreement, attested by John Lay, filed in this proceeding. The Elliotts subsequently occupied the premises for several years as Adams' tenant. Adams subsequently sold the property to the appellee Haun, and he has continued to live upon it until this suit was instituted. The evidence establishes an adverse holding of this land by the appellee and those under whom he claimed for more than 30 years. In 1874 Mary Elliott acquired title to the adjacent tract from one Taulbee, the calls of which seem to conflict with the boundary of 215 acres, and this interference is made the basis of appellant's contention that she owns the 28 1/2 acres in controversy. It is clear from the evidence that plaintiffs, Mary and Henry Elliott, when they were in possession of the 215-acre tract, claimed to the same lines and corners as now claimed by the defendant Haun; and, appellant's claim to this property having been once litigated and determined against her contention, her claim that the boundaries are not located where she claimed them to have been in the former suit cannot prevail.

In our opinion, the trial court properly adjudged in favor of defendant's title, both on the merits of the case and under the plea of limitation.

Judgment affirmed.

Ky.App. 1903.
ELLIOTT et ux. v. HAUN et al.
74 S.W. 743, 25 Ky.L.Rptr. 139


     

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