24 Ky.L.Rptr. 2225
Court of Appeals of Kentucky.
April 22, 1903.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Sarah F. Craig against the Welsh-Hackley Coal & Oil Company.
From a judgment in favor of defendant, plaintiff appeals.

The appellant, Sarah F. Craig, by a petition filed in the Knox circuit court, states that she is a resident of Charleston, in the state of West Virginia; that Eliza S. Goodwin, Levi Welch, Cornelia H. Welch, Miriam W. Donley, Lalla V. Welch, Charles Hedrick, Catherine C. Hedrick, Mary V. Hedrick, James Fry, Henry Fry, and John Fry, each and all claiming to be heirs at law of one James Welch, deceased, late of Greenbrier, formerly in the state of Virginia, but now West Virginia, filed a suit in equity in the United States Court for the District of Kentucky, at Frankfort, Ky., on the 26th day of September, 1896, against certain persons then residing in Knox county, Ky., for the purpose of quieting the title to certain lands in that county which were claimed by Eliza S. Goodwin and her coplaintiffs as heirs at law of James Welch. This action, which was styled "Eliza S. Goodwin and others, Plaintiffs, against William Gilbert and others, Defendants," in the United States Court for the District of Kentucky, did not come to trial, but was compromised by the plaintiffs, as the heirs at law of James Welch, with the defendants, who were the occupying claimants of the lands involved in the action. By this compromise the occupying claimants granted and relinquished to the plaintiffs all of their right, title, and interest in the coal and mineral rights in the land in question, and the plaintiffs relinquished to the occupying claimants all of their interest in the surface thereof, and the action in the United States District Court was dismissed. Proper deeds of conveyance between the parties to the action were made, and duly put to record in the Knox county court. Afterwards the plaintiffs in the action before mentioned, as heirs at law of James Welch, conveyed all of their right and title in and to the mineral rights in the lands so acquired to the Welch Hackley Coal & Oil Company, a corporation created under the laws of the state of New Jersey, with power to contract and be contracted with, to sue and be sued, and, among other powers granted to it, it was empowered to mine coal and bore for oil; that none of these before- mentioned plaintiffs in the action in the United States Court for the District of Kentucky were heirs at law of James Welch, nor did they have any right, title, or interest in or to the lands in question; that appellant is an heir at law of James Welch, but was not a party in the suit in question in the United States Court for the District of Kentucky, and was not a party to the compromise made therein, nor was she a party to any deed or deeds of conveyance made in pursuance of the compromise before mentioned. Appellant further states that Alexander Montgomery, Guy Montgomery, and L. L. Bright are the only heirs at law of James Welch, except herself, of whom she has any knowledge, and that she will take such steps as are necessary to bring them before the court; that Eliza S. Goodwin and her co-plaintiffs effected the compromise in question, and obtained the conveyance of the mineral rights before mentioned, by reason of the fact that they pretended to be heirs at law of James Welch; that the mineral rights obtained by reason of the compromise in question have great value, and that appellee, who purchased the same, has given out the statement that it paid $500,000 for them; that appellant does not desire to attack or assail the agreements of compromise and deeds of conveyance made thereunder to Eliza S. Goodwin and others, but, on the contrary, she ratifies the agreements of compromise, and accepts the deeds of conveyance, and prays that she be adjudged to be an heir at law of James Welch, and that appellee be adjudged to hold the conveyances made to it in trust for her and the other heirs at law of James Welch; and she prays for her costs and all other proper relief. A general demurrer having been filed by the appellee to the foregoing petition, it was sustained by the court, whereupon appellant filed an amended petition, in which she sets forth the names of the various occupying claimants who were defendants in the action of Eliza S. Goodwin against William Gilbert and others, and gave in detail the various agreements of compromise with reference to the land in question and sale of the mineral rights to appellee. By a second amendment she states that the compromise between the occupying claimants and Eliza S. Goodwin and her coplaintiffs was made under the belief that Eliza S. Goodwin and her coplaintiffs were the true heirs at law of James Welch, and that the compromise in question was made for the sole use, benefit, and profit of the real heirs at law of James Welch, and was so intended; that the agreements of compromise in question were all made without the knowledge or consent of appellant, but that she adopts and ratifies them. A general demurrer having been filed to the petition as amended, it was sustained by the court, and, appellant declining to plead further, her petition was dismissed; from which judgment she has appealed.

The petition, as amended, does not raise the question which appellant evidently desired to have this court adjudicate. Without reference to the merits of the question involved, the petition is clearly bad on demurrer, because it is not alleged that James Welch ever owned the land mentioned in the pleadings, or that he had any interest therein; nor is it alleged that he died intestate, or shown how appellant is his heir. The allegation that she is his heir at law is a mere legal conclusion, as was decided by this court in the case of Larue v. Hays, 7 Bush, 50. On this subject the court says: "But we are of the opinion not only that the plaintiffs have failed to manifest their right to any recovery by any sufficient evidence of title, but that the petition is fatally defective, so far, at least, as it purports to allege the derivation of title by Phoebe Larue by inheritance from Isaac Larue, the averment that she was one of his heirs being but a conclusion of law, as this court has repeatedly decided in effect in passing upon the competency of evidence adduced to prove heirship."

Appellant's petition was fatally defective for these reasons, and the circuit court did not err in dismissing it on demurrer; wherefore the judgment is affirmed.

Ky.App. 1903.
73 S.W. 1035, 24 Ky.L.Rptr. 2225

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