20 Ky.L.Rptr. 1403, 105 Ky. 586
Court of Appeals of Kentucky.
Feb. 7, 1899.
ACTION: Reversed.

Appeal from circuit court, Bell county.
"To be officially reported."
Action by J. F. Neal and others against the Middlesborough Waterworks Company to recover land.
Judgment for plaintiffs, and defendant appeals.

The reservoir, boiler house, and engine house of the appellant are situated upon the land in dispute. The appellees claim that the land in contest is covered by patents as follows: One of which was issued to James Farmer, July 19, 1826; one to Reuben Gibson, September 3, 1823; one to William Beard, No. 15,348, February 1, 1832; and one to William Beard, No. 15,349, February 1, 1832. It is claimed by the appellees that the bodies of land covered by the patents adjoin, constituting a contiguous boundary. Appellant claims the land in contest is covered by patent No. 54,838, for 100 acres, which was issued to Henry Parker, March 1, 1881, upon the survey which he had made on January 15, 1875, and by a patent No. 58,654, for 50 acres, which was issued to him October 19, 1883, upon a survey which he had made March 16, 1881, and the boundaries of which adjoin. We are of the opinion that the land in dispute is covered, in part, by each of the elder patents, so as that all of it is embraced by them. The grants to Parker likewise cover it. The appellant holds the lands as Parker's remote vendee, and claims that it and those through whom it claims have been in the continuing actual adverse possession of the land for more than 15 years next before the institution of this suit, on June 6, 1895. The appellees claim that they have the legal title to the land covered by the elder patents, because of various conveyances from the patentees and others. So many questions have been raised in this case for our consideration that each will be considered as briefly as possible.

The appellees offered, and the court permitted to be read, what purported to be a certified copy of a deed, dated August 10, 1825, for part of the land covered by the Reuben Gibson patent. The copy would indicate, if admissible as evidence, that the original had been witnessed by Robert George, John Turner, and George W. Craig. The clerk of the Harlan county court (Harlan county being the county in which the land was then situated) certifies that "the foregoing indenture of bargain and sale from Reuben Gibson and Henrietta, his wife, to Johnson Drake, was presented to me in my office on the 24th day of October, 1825, and acknowledged by the subscribing witnesses, and the same is truly admitted to record in the clerk's office of the county court aforesaid." It is unnecessary to quote the statute then in force, which required that the witnesses to the execution of a deed were to prove its execution; i. e. they must make oath to such facts as would show that the deed had been executed by the grantor. The law did not authorize a clerk to place a deed upon record when acknowledged by any one other than the grantor. The grantor in a deed is the only one who can acknowledge its execution. We must presume that the clerk did exactly what his certificate states was done. It would be a violent presumption for the court to say that the clerk intended to certify that the witnesses had proven the execution of the deed, instead of saying that they had acknowledged it. It follows, as the execution of the deed was not properly proven, that the clerk was not authorized to record it, and a copy of it is not admissible as evidence.

The court admitted as evidence a copy of the deed of William Beard to Thomas J. Beard, dated March 9, 1852. Names are appended to the deed in the form as follows:
"William Beard [Seal.],
"Per Fleming Campbell."
"Signed in the presence of:
"Fleming Campbell.
"James H. Lee.
"Jefferson Craig."

The original deed was not offered. The clerk certifies that the deed was produced in his office, and proven by the oath of Fleming Campbell and James H. Lee, the subscribing witnesses, to be the act and deed of William Beard. The court has reached the conclusion (not without difficulty) that the copy of the deed was admissible as evidence. If William Beard had directed some one to write his name to the deed, and it was done in his presence, it would have been his act.

Counsel for the appellant insist that the name of "William Beard, Per Fleming Campbell," imports that it was the act of Campbell, and not of Beard; that Campbell was executing the deed for Beard. This argument has much plausibility, but it is hardly probable that Fleming Campbell would appear on the instrument as a witness to his own act if he was assuming to represent Beard in its execution. Besides, there is proof of Campbell and Lee before the clerk that it was intended to be, and was, the act of Beard, and not of Campbell. We have concluded that the signature thus made simply imports that Campbell signed Beard's name at his request, and added his name to show that it was by him that Beard's name was written. The facts of the case sufficiently show an acceptance of the deed by the grantee.

It appears that at the March term, 1853, of the Knox circuit court, George Brittain recovered a judgment against Thomas J. Beard for $52.60 and interest and costs, and at the same term John G. Newlee recovered a judgment against him for $125.62 and interest and costs. Appellees fail to exhibit the executions which they claim were issued upon the judgments, but by parol testimony endeavor to show that they were lost or misplaced, and that they were levied upon the land which William Beard had conveyed to Thomas J. Beard; that on the 23d day of May, 1853, the land was sold, and at which sale F. Campbell became the purchaser, at a price which paid the Brittain execution and more, and the balance of the purchase money was to go as a credit on the debt of Newlee; that afterwards, to satisfy the balance of the judgment of Newlee, the equity of redemption was sold, on the 24th day of October, 1853, and John G. Newlee became the purchaser. It is claimed Campbell executed a bond for the amount which he agreed to pay for the land (he says he never paid it, and does not know who did), and that he was acting for Newlee in the purchase. It seems that Thomas J. Beard was living upon the land at the time it is claimed that it was sold under the execution, and, according to some of the testimony, he remained on it until 1858 or 1859. There is little evidence of doubtful competency in the record tending to show that George Brittain had possession of part of the land under Newlee for a time. There is also testimony tending to show that he claimed to hold under Thomas J. Beard. Unless Brittain held possession of part of the land for him, Newlee never was in possession of any part of it.

The appellees claim to have derived title through John C. Colson, Sr., and they endeavored to show that in 1872 or 1873 he let John G. Newlee have some money, and in consideration of which he was to have the land. He lived near the land, but never had possession of any part of it. The children of John G. Newlee attempted to convey it to him by a deed dated April 20, 1882, at which time Parker was in the actual adverse possession of it. To avoid the effect of the statute against champerty, the appellees endeavored to show that Newlee had made a verbal sale of the land to Colson when the land was not in the adverse possession of Parker, and, to carry that out, the deed of the heirs of Newlee was made. The evidence upon this question is of a very unsatisfactory character, and the circumstances developed in the case create a very serious doubt in the mind of the court as to whether such a contract of sale was ever made, although it does not show that Newlee borrowed some money of Colson. The deed which the heirs of Newlee made to John C. Colson, Sr., recites the consideration to be the sum of $500 to them in hand paid; and Parker testifies that W. H. Newlee, one of the heirs of John G. Newlee, told him some time after the survey was made, in 1875, that he would put the matter in the hands of a man who would get him off of the land; and we find about that time or shortly afterwards that Colson appeared before the county clerk of Bell county, and presented for record a certificate of purchase of the equity of redemption which had been given to John G. Newlee by the sheriff, and which certificate had never been assigned to Colson. It is most remarkable, if Colson bought the land from Newlee, that he did not take a deed or title bond for it, or, if he got the certificate of purchase during Newlee's lifetime, he did not take an assignment of it. It is also exceedingly strange, if Colson bought the land, as claimed, in 1872, that he would have waited until 1882 before he got a deed for it from the heirs of Newlee. Again, it is strange why a man of his business capacity, if he had bought the land, would have allowed Parker to take possession of it in 1875, and hold it until his death, without even, so far as this record shows, protesting against it, although he lived a mile and one-half or two miles from the place.

This court has held that deeds which are executed while land is in the adverse possession, but to carry out written or parol contracts made at a time when the land was not so held, are not a violation of the statute against champerty. Cardwell v. Sprigg's Heirs, 1 B. Mon. 372; Simon v. Gouge, 12 B. Mon. 164; Greer v. Wintersmith, 85 Ky. 516, 4 S. W. 232; Hopkins v. Paxton, 4 Dana, 36. In order to recover in this case, it was essential for the plaintiffs to show that they had title to the land and right of entry; and this could not be done unless the title to the land had vested in Newlee by virtue of sheriff's sale to which we have alluded. The deed which they relied upon for that purpose was made by Demcy King, in 1894,--40 years after it is claimed the sale was made under the executions. We will not go into the consideration of the question as to the regularity of the execution sales, or as to the right of the appellees to supply the executions claimed to have been lost by parol evidence on the trial of the case, because we have reached the conclusion that the deed which King, ex sheriff of Knox county, made, is not valid. More than 40 years had elapsed from the time the sale was made until the deed was made, in 1894. Beard lived on the land for some years after the sales under the executions, but the evidence leaves us in doubt as to the exact time. The evidence in the case does not make it certain that Newlee ever had possession of any part of the land through Brittain, but, if he did, it was before the late Civil War. There is evidence tending to show that Brittain claimed to hold under Beard. Newlee lived within a few miles of the land. There were some houses on it, which seem to have been permitted to go into decay. No one lived upon the land from 1860 until Parker moved upon it, in 1876. We are of the opinion that from all the facts and circumstances of this case, and the long delay in having King execute the deed, the conclusive presumption should be indulged that Beard had redeemed the land from the sales under executions, and the court should have refused to allow the deed to be read as evidence. As this deed was inadmissible as evidence, plaintiffs fail to show that they had title to the land.

As we do not know what course may be pursued in this case with reference to a future trial, we regard it as proper to pass upon some other questions which are complained of as errors.

The proof in this case shows that Parker built a house within his boundary in 1875, and the following year moved upon the land, and fenced up part of it. After that time he extended his fence, and also fenced up part of the land in the grant of 50 acres to him. He claimed to the extent of his patent boundary, and lived within it, during which time no one was in the actual adverse possession of any of the lands covered by the elder patents to which we have alluded. The court, in instruction No. 3, substantially told the jury that, if they found for the appellant, it could only do so to the extent of appellant's inclosures by fence. Parker entered under a color of title, and took actual adverse possession of the land to the extent of his boundary. This court has repeatedly held that persons entering under surveys and junior grants do so under color of title.

Under instruction No. 4, the jury was substantially told that if they believed that Thomas Jones and those claiming under him, for more than 20 years before the 25th of April, 1853, had the actual adverse possession of a certain part of the land (describing it), claiming it as their own, etc., the plaintiffs were entitled to recover three-fifths of it. This instruction completely ignored the question of adverse possession of the appellant and those through whom it claimed, and was erroneous.

It appears that, in the spring of 1889, Parker decided to leave the land he had in possession, and he made an arrangement with his brother-in-law, Henry Marsee, to take possession of it, and hold it for him, and that, after doing so, Marsee made some arrangements with one of the appellees by which he was to hold it for them. He moved in the Parker house, and took possession of the land; but, when Parker found out that he was claiming under the appellees, he returned, went into the house, and in a short time Marsee left, and Parker surrendered the possession of the place to one Edmonson, to hold for the benefit of the Parker claim. While Marsee testifies that he entered under Colson, his statements do not amount to a denial of the contract, as claimed by Parker; and, under such circumstances, the possession was never derelict, and there was such an occupancy as would have authorized an action of ejectment. Forman v. Ambler, 2 Dana, 110. Besides, at the time this took place, there was a suit in ejectment pending in the Bell circuit court by the appellees against Parker, to recover the possession of the land; and it continued to pend until some time in 1890, when the parties went into a trial, and for some cause the plaintiffs concluded they could not succeed, the jury was discharged, and the action dismissed without prejudice. There was no occasion for the plaintiffs to institute a suit in ejectment to recover the land during the time Marsee was there. The plaintiffs recognized that Parker was in the possession of the land, and thereafter kept the suit on the docket, and attempted to recover the possession of it. "The attempt of the appellants to take possession after the bringing of this action, by moving a house onto the property, cannot avail. It was pendente lite, and cannot affect the possession which the appellees had at the bringing of the suit." The parties remained in statu quo, and, if the claim of Parker be true, the continuity of his possession was not broken.

The court should have given instruction No. 6, which was offered by the appellant, which substantially told the jury the continuity of the defendant's possession was not broken if they believed that Marsee agreed to take and hold under Parker, and afterwards attempted to claim and hold under the appellees, without the consent of Parker.

We are of the opinion that the facts in this case show that owing to the plaintiffs' official and political associations and family relationships, resulting from marriages and intermarriages, and from the prejudice against the defendant owing to its supposed connection with other business enterprises about the city of Middlesborough, it could not get a fair trial in Bell county, and the court should have sustained the motion for a change of venue.

The judgment is reversed for proceedings consistent with this opinion.

Ky.App. 1899.
49 S.W. 428, 20 Ky.L.Rptr. 1403, 105 Ky. 586

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