Court of Appeals of Kentucky.
Jan. 28, 1910.
ACTION: Reversed and remanded, with directions.

Appeal from Circuit Court, Knox County.
"Not to officially reported."
Action by J. R. Goodin and others against Henry Miller.
Judgment for plaintiffs, and defendant appeals.

Ezekiel Goodin obtained a patent from the commonwealth on June 2, 1857 for 50 acres of land. He died in the year 1880. This action was brought in October 1905, by J. R. Goodin and others, as his children and heirs at law, against Henry Miller, to recover so much of this 50-acre patent as lies outside of a previous survey patented in the name of Samuel Dickey. Miller set up this defense: A. P. Wilson owned the Samuel Dickey patent, or a part of it. The Goodin patent conflicting with the Dickey patent, a litigation ensued between Goodin and Wilson, and in this suit Wilson recovered all of the land lying within the Goodin patent which was also included in the Dickey patent. There were about 20 acres included in the Goodin patent that lay outside of the Dickey patent. Wilson had an execution for costs against Goodin, amounting to $35, and this was levied on the land owned by Goodin outside of the Dickey patent. The land was appraised at $15 and was bought by Wilson at the execution sale. Wilson took possession of the land, and held it from that time on until he sold it to Miller in 1897. Miller entered upon the land when he bought it, and has since held it. All of this is now shown by parol. The execution was not returned by the sheriff, or, if returned, cannot now be found. The record simply shows that the execution was issued in 1878; but there is no record of its return, or what was done under it. There is proof by two or three witnesses, however, to the effect above stated, as to the sale of the land, its appraisement, and its purchase by Wilson for his debt. The fact that Wilson then took possession of the land, and held and used it from that time until he sold it to Miller, was shown by a number of witnesses. So far as appears from the proof, Goodin made no claim to the land after it was sold at the execution sale, and his heirs appear to have set up no claim to it until shortly before this suit was filed. In the circuit court the case was by consent transferred to equity, as Miller held under a title bond from Wilson, and as Wilson had no deed from the sheriff, or at least none could be found; Wilson having died some years before the suit was brought. On final hearing the circuit court entered judgment in favor of the Goodins, and Miller appeals.

The ground of the judgment of the circuit court appears to have been that the defendant had no record title, and that the possession by him and Wilson was not sufficient to give him a title by adverse holding. There was proof by one witness who testified in substance that she heard her father once suggest to Wilson to buy out the Goodin heirs in this land, and by another witness that Wilson told her father to cut on his land and not to get over on the Goodin land. But both these conversations occurred many years ago; and, while the ladies who testified to them no doubt have repeated them as they remembered them, this testimony cannot outweigh the great mass of evidence in the record, showing that Wilson took possession of the land and claimed it as his own. He cleared a large part of it and inclosed it. He cut a large quantity of bark from it. He cut timber from it, and his manner of dealing with the land from the time of his execution purchase shows beyond doubt that he was holding it as his own.

The judgment of the circuit court appears to be based upon the ground that Wilson did not have the land inclosed on one side, and that this fence was put up within 15 years before the suit was brought. But it was not necessary that Wilson should have an inclosure around the land to give him an adverse possession under the circumstances. He lived on an adjoining tract. He entered upon this land, cleared and inclosed a large part of it, claiming the whole as a purchaser; and although he did not put the whole under fence, his possession was not confined to his close, but extended to the whole boundary. By living on one tract he could not get possession so as to acquire title to an adjoining tract by simply claiming it, or occasionally trespassing upon it; but when he entered upon the land which he had purchased with intent to take possession of the whole, and cleared and inclosed a part of it, this entry, there being then no adverse holding by Goodin, extended to the limits of the boundary he claimed. He claimed all the Goodin patent outside of the Dickey line. The lines of this patent were marked and well defined, and so he claimed to a well-defined, marked boundary, and took possession to the extent of his claim, although he did not actually inclose all of the land. When he thus remained in possession for 15 years, his right to the land became as absolute as if the sheriff had made him a deed.

When a record is lost, its contents may be proved by parol, as any other writing. That the execution is lost there is no question; but its loss by the officer having charge of it does not defeat the rights of the purchaser under it. His rights were acquired at the sale, and were not affected by the subsequent loss of the writ. Regularly he should have taken a deed from the sheriff and obtained a writ of possession from the court. But Goodin might waive this, and when he and those claiming under him acquiesced in Miller's possession his holding was rightful; and after so many years he and those claiming under him should not be disturbed.

On the facts shown, we therefore conclude that the right of the case is with the defendant.

Judgment reversed, and cause remanded, with directions to the circuit court to dismiss the petition.

Ky.App. 1910.
124 S.W. 818


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