Court of Appeals of Kentucky.
Hopkins Vs. Slusher
ACTION: Affirmed
Court of Appeals of Kentucky.
Nov. 27, 1936.

THOMAS, Justice.
The sole question involved on this appeal is whether or not the appellant and plaintiff below, I. L. Hopkins, was at the time of the filing of this action or since then the owner of a tract of land in Knox county containing 83 acres which was patented to Isaac Mills, Sr., on February 3, 1891. The action was filed in the Knox circuit court by plaintiff against defendant and appellee C. B. Slusher and another, on March 27, 1918; but judgment therein was not rendered until July 6, 1935, thus entitling the case to be listed as a Rip Van Winkle litigation. At the outset and upon the filing of the petition, plaintiff procured a restraining order from the clerk of the court enjoining defendants from interfering with his possession or title, and which clung to the case throughout its long career in the circuit court, no steps having been taken to dissolve it.

Plaintiff in his petition alleged generally that he was the owner and in the possession of the described tract of land. He also specially pleaded that he and those under whom he claimed title had adversely occupied it and possessed it for a sufficient length of time to mature an adverse possessory title. Both general and special allegations of ownership were denied by defendants (to be hereafter referred to in the singular) and Slusher also averred his ownership of the land, and said in one paragraph of his answer that he "is entitled to the immediate possession of said land and ought to recover the same from the said plaintiff and his agents and tenants, and he prays the petition be dismissed" and for judgment for $100 damages. He likewise in his answer made the special plea of title by adverse possession. Following pleadings made the issues and the case then began its long sleep. During its sojourn in the circuit court and in the latter part thereof proof was taken by the respective sides and after submission the court first rendered judgment in favor of plaintiff, but on the same day of the term or on the next day he set that judgment aside and rendered one dismissing plaintiff's petition and adjudged that defendant Slusher was the owner of the land. To reverse it, plaintiff prosecutes this appeal.

Before taking up what we have said was the decisive question, we deem it appropriate at this point to say that neither party proved adverse possessory title. They did prove, however, that plaintiff and those under whom he claimed at different short and abandoned periods were in possession of some portion of the land and the same is also true with reference to defendant's alleged adverse possession; but neither of them proved continuous adverse possession of the nature, kind, and extent required by the law in order to effect a transfer of the title. We must, therefore, look to other sources of title about which testimony was heard in order to solve the decisive question, supra. The only one on which plaintiff relies to establish title in himself (excluding the one that we have denied) is a sheriff's deed executed to him on May 28, 1908, which purports on its face to have been made by the then sheriff of Knox county, Dan H. Williams, pursuant to a sale of the land on December 23, 1907, under a levy of an execution that the sheriff had made on the land as the property of the supposed judgment defendant issued in favor of the plaintiff, I. N. Hopkins, and against Isaac Mills, Sr., the patentee of the land. The deed recites the number of the execution, and that it issued "from the clerk's office of the Knox circuit court on the 7th day of October, 1907, in favor of I. N. Hopkins, and against Isaac Mills, for the sum of $300.00 and for $14.95 costs." The deed also further recites that the execution was delivered to the sheriff on that day and while it was in force and effect he levied it on the land and that he advertised its sale, under the levy, for December 23, 1907; that the sale was to be held at the courthouse door, which was done, and that Hopkins became the purchaser at the sum of $175, the land having been appraised, according to the recitation in the deed, at the sum of $172.

That deed came into the record this way: When plaintiff was giving his deposition, he was asked by his counsel if he was the owner of the land, to which he made an affirmative answer. He was then asked if he had a deed therefor and he made a like answer and filed his sheriff's deed as an exhibit with his deposition. He also stated that he in person had posted the advertisement of the sale on the land--as the law requires--at the instance of the sheriff, and that in some manner he got possession of one of the advertisements and had preserved it. He was requested to and did file that advertisement, which is in the usual form and contains, in substance, the same recitals and no more than what we have stated was contained in the deed. In neither the advertisement nor the deed is it stated (except by inference) that any judgment was ever rendered by the Knox circuit court for any sum in favor of plaintiff, Hopkins, against Isaac Mills, Sr., the supposed defendant in the execution or case in which the judgment is supposed to have been rendered. The inferential recital of that fact is the one saying that the execution issued from the Knox circuit court in favor of Hopkins against Mills for the sum of $300 and the costs. The two papers to which we have referred are the only ones in this entire record bearing in any manner upon the existence of the alleged judgment in favor of Hopkins against Mills, nor did any witness state orally that any such judgment was ever rendered, or, if so, that Mills was served. We are, therefore, confronted with the single question as to whether in the circumstances the deed, purportedly executed by the sheriff to plaintiff, is, because of its recitals, sufficient to prima facie establish the legal transfer of the title to the land from Mills to Hopkins?

But it is said that although plaintiff so failed the court erred in adjudging the defendant Slusher to be the owner of the land, and which is based upon the contention that he did not pray for such relief. We have hereinbefore said that he stated in his answer that he ought to recover the land from plaintiff because he himself was also the owner of it, and he closed his prayer in the usual way "for all proper relief." We think that was sufficient to entitle the court to adjudge him the owner of the land, if the evidence justified it. But it is further contended that the evidence did not so justify and, therefore, the court erred in so adjudging the title to him. A sufficient answer to that contention is that plaintiff has no interest in the land if he himself does not own it, and it is no concern of his as to who the court determined was its true owner. However, under the evidence defendant did own at least one-half of the land, being the part that the widow of Grant Taylor obtained in a deed executed in 1899 by Isaac Mills, Sr., to Grant Taylor and wife, "parties of the second part." Before that deed was delivered, the husband died and it was later turned over to his widow and she afterwards conveyed whatever interest she had to defendant. The deed from Isaac Mills, the delivery of which was so deferred, did not have the effect to vest Grant Taylor with any interest in the land, since it was not delivered to him during his lifetime; but it did vest in his widow, a joint grantee, the extent of the interest that the deed conveyed to her, which was one-half. To that extent at least defendant proved title. No one, except plaintiff, is here complaining of the judgment vesting the entire title in him, and strangers to the case who might own the other half interest that the deed of Isaac Mills did not convey because of lack of delivery of his deed, will not be bound by this judgment, but will be free to litigate that question in the future, if they see proper to do so before their rights become barred.

For the reasons stated, the judgment is affirmed; the whole court sitting.


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