14 Ky.L.Rptr. 825, 94 Ky. 156
Court of Appeals of Kentucky.
March 11, 1893.
ACTION: Reversed.

Appeal from circuit court, Clay county.
Not to be officially reported.
Action for trespass by P. B. Reynolds against B. P. White and another.
From a judgment for defendants, plaintiff appeals.

In 1834 a patent for 600 acres of land was issued to Alexander White and Missenger Lewis; and in 1835 the latter sold and conveyed his undivided half thereof to C., J. & D. White, three brothers and copartners. In 1852, Alexander White, being indebted to them in a large sum of money, mortgaged all his landed estate, including his undivided half in said 600 acres, to C., J. & D. White, retaining, however, possession of his home place. In 1875, C., J. & D. White all being dead, the heirs at law of D. White instituted an action against the heirs and devisees of C. White and J. White for a partition of all the lands owned by the firm of three brothers. In the list of lands alleged to belong to C., J. & D. White, and subject to partition between their respective heirs and devisees, was the tract of 600 acres patented to Alexander White and Missenger Lewis; and it was stated in the petition that Alexander White had conveyed his undivided half of that tract to C., J. & D. White before they died, but that the deed had been lost. However, by the judgment rendered in that action, the tract of 600 acres was in fact partitioned, and 100 acres of it, besides other tracts, was allotted by the commissioners appointed by court to the heirs and devisees of J. or James White, and a deed made to them therefor in 1881. In 1883, H. L. White, executor of the will of James White, and empowered thereby to do so, sold and conveyed to appellant, Reynolds, all the land that had in the action mentioned been allotted to the heirs and devisees of J. or James White, including the parcel of 100 acres that had been taken off the tract of 600 acres; and for description and identification of the land so sold and conveyed to Reynolds reference was made to deed of the commissioners to James White's heirs and devisees. The land in controversy in this action is a parcel of 36 acres inside the boundary of the original 600- acre tract, and also within boundary of the 100 acres taken therefrom, and allotted to said heirs and devisees; and the cause of this action, which was at first placed on the ordinary docket, is alleged trespass by the defendants, B. P. White and J. C. White, in cutting and carrying timber away from the 36 acres. It is proper to state that neither of the defendants claim the land as heirs at law of any one of the three brothers C., J. & D. White, though defendant B. P. White is the husband of one of the heirs, and was a party to the action instituted in 1875 for division of the lands. In their answer, they state that prior to his death, though subsequent to death of the other two members of the firm of C., J. & D. White, D. or Dougherty White caused executions to issue on judgment or judgments in favor of the firm against Alexander White, and to be levied on various tracts of land owned by him; that, after the executions were levied, he (Dougherty White) made an agreement with one L. A. Byron by which the latter, upon bidding and paying $400 for certain parcels of the land, (one of which was the 36 acres in controversy,) was to have made to him by D. White, the surviving member of the firm of C., J. & D. White, a complete title to the land thus bid for and purchased by him; and thus, claiming the parcel of 36 acres, L. A. Byron, they allege in the answer, in 1889 conveyed it to defendants, B. P. and J. C. White. But there is not filed in this record, nor accounted for, a copy of either the judgment or execution against Alexander White, nor the original or copy of either a deed to L. A. Byron, or the one from him to the defendants. In fact it is not shown, nor attempted to be shown, by any but oral testimony,- that is both incompetent and vague,-that there ever was such judgment, execution, or sale; and L. A. Byron stands without a vestige of paper title to the 36 acres. Nor does claim of title by possession avail him, for no survey was made, even if he had paper title, by which to show the parcel of 36 acres is included in the boundary of land sold by the sheriff, if he in fact ever made any such sale. On the other hand, the plaintiff traces his title to an undivided half of the parcel of 36 acres, by regular and connected chain, to the commonwealth, and possession and claim of absolute title to the whole from 1883, when the executor of J. White sold and conveyed to him. It is, however, alleged, and attempted to be shown, that in 1889, about the time they state L. A. Byron sold and conveyed to defendants, the plaintiff disclaimed ownership of the parcel of 36 acres, and that the defendants were thereby misled and induced to purchase. But we think that allegation is not sustained by the proof; for, according to the statements of witnesses, L. A. Byron sold and conveyed to defendants in 1889 several tracts of land, including the parcel of 36 acres, but refused to warrant the title to that parcel, thus showing the parties to that deed knew of the title and claim of the plaintiff, Reynolds. The parcel of 36 acres seems to be on opposite side of a dividing ridge from the residue of the tract of 100 acres, and Reynolds admits he did not in 1889 certainly know whether it was included in the deed made to him in 1883, but insisted upon claiming all within his boundary. The testimony and report of the surveyor in this case place it beyond doubt that the parcel of 36 acres is inside the boundary of the 600 acres, and was allotted to the heirs of James White, whose executor conveyed to Reynolds. Indeed, it is impliedly admitted by the defendants that the parcel of 36 acres was conveyed by commissioners to James White's heirs, for they allege in their answer a mistake was made by the commissioners in running the lines so as to include it, and ask the deed be reformed, which, of course, cannot now be done.

This action having been transferred to equity, upon motion of defendants, it certainly was competent for the chancellor, and was we believe his duty, to have adjudged the plaintiff, Reynolds, entitled to at least one half the land in dispute, and consequently to one-half value of the timber cut and carried away by defendants.

The real and only question in this case is whether the plaintiff is owner of all the land in dispute. He is if Alexander White was divested of title to his original undivided half of the 600 acre tract at the time the division took place, in 1881. There is no evidence that the mortgage executed by Alexander White in 1852 was ever enforced, nor does it appear he ever paid any part of the mortgage debt. On the contrary, the evidence in this case satisfactorily shows he never was able to do so. There is evidence tending to show that C., J. & D. White took possession of the 600 acres not long after the mortgage of 1852, and held, claimed, and exercised acts of ownership over it till they died; and, notwithstanding Alexander White was living in the immediate neighborhood of the 600-acre tract in 1881, he permitted the heirs at law of C., J. & D. White, (the mortgagees,) without objection or protest, to obtain judgment for division and allotment of the 600-acre tract among themselves, and thereafter to possess, claim, and sell the different parts of it. It seems to us that, after the lapse of 29 years from the date of the mortgage in 1852, to the division among the heirs at law of C., J. & D. White, in 1881, without setting up any claim himself, or objecting to the claim, possession, and acts of absolute ownership by C., J. & D. White while they lived, and their heirs at law afterwards, which finally culminated in a division and allotment of it, Alexander White must be presumed to have parted with his title; especially when it is satisfactorily shown he was fully aware of the condition of affairs, and yet during that long period never asserted or exercised any acts of ownership of the land, or claimed to have paid any part of the mortgaged debt. If, then, the heirs at law of C., J. & D. White had, when the division took place, in 1881, acquired title to the entire tract of 600 acres, whether paper or possessory, it was transmitted as to 100 acres thereof, including the 36 acres in dispute, unimpaired to the plaintiff, Reynolds; and that they had so acquired it, in virtue of 29 years of continued and undisputed possession and claim of ownership, we think the evidence conclusively shows; for there is no other way to account for the conduct of the mortgagees and creditors in failing to enforce their lien, and to such collection of the mortgage debt, and of the conduct of the mortgagor and debtor in acquiescing in their possession and claim of the land for 29 years, without any assertion of title or claim to the land, or any presence that he had paid, or ever attempted to pay, any part of the debt.

Wherefore the judgment is reversed, and cause remanded for judgment in favor of plaintiff for the land, and inquiry as to damages he is entitled to by reason of the trespass complained of.

21 S.W. 754, 14 Ky.L.Rptr. 825, 94 Ky. 156


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