Court of Appeals of Kentucky.
FUSON v. BOWLIN et al.
April 19, 1895.
ACTION: Affirmed.


Appeal from circuit court, Bell county.

"Not to be officially reported."

Action by L. J. Bowlin and others against Jeff Fuson to recover possession of certain land. Judgment for plaintiffs, and defendant appeals.

PAYNTER, J.
This is an action to recover the possession of land. The appellant, Fuson, filed a demurrer to the petition, which was overruled, and, failing to plead further, the court granted the relief sought. It is alleged that at the time of his death N. B. James was the owner of a certain boundary of land situated in Bell county, Ky., being the same land surveyed for N. B. James by survey bearing date June 1, 1874, and patented to said James by the commonwealth of Kentucky on the 6th day of February, 1892. It is further alleged that James left the state in 1876 or 1877, and has never returned to the state, and that "plaintiffs have never heard from him since he left, although they have repeatedly and diligently tried to do so." It is also stated that James is dead. In the petition a state of facts is alleged which shows that the female plaintiffs are the only heirs at law of N. B. James. Counsel for appellant insist that the petition is defective, because (1) the plaintiffs state, since James left the state as stated, they have never heard from him; (2) that the patent of the commonwealth of Kentucky to James was champertous. We will briefly consider the questions raised by counsel in the order stated.

It is contended that the plaintiffs should have stated that James had not been heard of by plaintiffs or either of them from himself or from any person known to the plaintiffs or either of them. This contention cannot be sustained. All that plaintiffs stated about not having heard from James within seven years, or since his departure from the state, is surplusage and immaterial, as would be the language suggested by counsel, because the facts which are essential to be stated in order to create the presumption of death do not include these stated by plaintiffs, which are the subject of criticism by counsel, nor such facts as would have been stated had the language been used which counsel suggests. It is, in substance, stated in the petition that James had gone from the state, and had not returned to the state for more than seven successive years. These allegations created the presumption that James was dead. Any one who questioned statements of fact which created the presumption could prove that he was alive within that time. This is but a statement of the plain provision of the statute. If this were a case where a plea of champerty could have been interposed, there was an entire absence of such plea. There are no facts alleged in the petition which showed that the patent from the commonwealth of Kentucky was champertous. It was alleged that the female plaintiffs were the owners of the land; that they were entitled to the immediate possession thereof; and that appellant's possession is wrongful and without right. These facts are admitted to be true by the demurrer.

Judgment affirmed.

Ky.App. 1895.

FUSON v. BOWLIN et al.



     

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