17 Ky.L.Rptr. 930
Court of Appeals of Kentucky.
HIBBARD et al. v. WILSON et al.
Nov. 22, 1895.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by Jesse T. Wilson and others against Felix Hibbard and others to enjoin defendants from trespassing on and removing timber from certain land.
From a judgment for plaintiffs, defendants appeal.

This action in equity was instituted in the year 1893, by the heirs at law of Peter Wilson against the heirs at law of Wiley Hibbard, seeking to enjoin the latter from trespassing on certain lands that had descended to them from their ancestor, and from taking therefrom timber, etc. The appellants pleaded title in themselves by reason of a bond for title executed to their ancestor by one Harrison, who they claim purchased it of the ancestor of the appellees. They also assert title by reason of an adverse possession for more than 15 years prior to the institution of appellees' action. Peter Wilson owned a large tract of land, that was sold and conveyed by him to one Harrison, and Harrison sold 200 acres of this large tract to appellants' ancestor, Wiley Hibbard, and placed him in possession, Hibbard holding Harrison's bond for title; and in fact it appears that Peter Wilson was present, and assisted to lay off the boundary to Hibbard, and took, by assignment, the interest of Hibbard's wife in the estate of her mother, in part payment of the land to be credited by what might be collected from that source. This sale was made in the year 1869, and both Hibbard and his wife died in the year 1873, and were then living on the land in controversy. These appellants rely in their answer on the sale and conveyance by Peter Wilson to Harrison, and by Harrison to their ancestor, by title bond executed in 1869. The appellees, in response to the claim of appellants, admit the sale by Peter Wilson to Harrison, and the execution of the bond for title by Harrison to Wiley Hibbard, but allege that, in a certain action in equity between Peter Wilson and Harrison, the conveyance to the latter was canceled, and Wilson reinvested with title. They concede that Wiley Hibbard did have Harrison's bond for title, but allege that the same was surrendered and given up to Wilson, and Hibbard surrendered his claim to the land, and gave up the possession to Wilson. This reply was never traversed by the appellants, and the case must be considered as if the facts alleged as to the surrendering of the title bond are true, and, besides, the proof conduces to show that this averment is true; and with the claim of title out of the case, by reason of the bond from Harrison, the only question that arises is as to the adverse possession of the appellants as against those who have the legal title.

There was an issue out of chancery to try this question of title and the question of adverse possession. The jury was instructed that, if the conveyance was rescinded that had been made by Wilson to Harrison, the plaintiffs were then the owners, unless they believed the defendants, or some one or more of them, had been in the peaceable adverse possession of the land, by some of them continuously living on same for more than 15 years before the bringing of the suit. This instruction, but for the pleadings, would have been erroneous, because the rescission or cancellation of the conveyance by Wilson to Harrison, in an action to which Hibbard was not a party, could not affect Hibbard's title; but, as the pleadings admit the cancellation of the bond to Hibbard from Harrison, the title was in Wilson, unless divested by the adverse possession of the appellants. While it may not be indispensable that the parties themselves who are claiming under an adverse holding should live on the land, there must be such a possession by the adverse claimants or their tenants as would require the owner to sue in order to regain the possession. The testimony shows that this possession by the appellants was neither peaceable nor continuous. It is shown by the appellants themselves that no one lived on the land from 1878 to 1884. The houses were destroyed, or had fallen down, and from 1888 to 1893 none of the appellants or their tenants lived on the land; and while absent from the land they may have claimed to own it, still, as against the owner and holder of the legal title, who has been claiming not only the land, but the actual possession, and, during various periods of the time that the appellants claim to have been the owners, have had tenants in the actual occupancy of the lands in controversy, such a claim is not an adverse possession. It is apparent, however, from appellants' own testimony, that they have no title by reason of any adverse possession, and could not therefore have been prejudiced by the instructions given. Distinct and separate periods of possession although amounting, when taken together, to the time constituting the statutory bar, cannot be relied on to defeat the real owner. From 1878 to 1884 (a period of six years) there was no one in the occupancy of this land, that the appellees could sue, nor from the year 1888 to 1893 was there any one on the land claiming it, against whom an action could be brought. So, from the time the bond was surrendered, in 1872, there was a period of 11 years that no one occupied the land, and its possession must be regarded as with the legal title. Besides, we think it apparent from the record that the ancestor of the appellants never received any payment on this land from Hibbard or his wife; and, if the fact of the surrender of the bond had not been admitted, the facts of this record conduce strongly to show that such was the case. This action was in equity, and the chancellor, aided by the verdict of the jury, has decided that this land belonged to the appellees; and, while the instructions to the jury were erroneous, neither title by writing nor by possession was shown in the appellants.

Judgment affirmed.

Ky.App. 1895.
HIBBARD et al. v. WILSON et al.
32 S.W. 1086, 17 Ky.L.Rptr. 930


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