15 Ky.L.Rptr. 154
Court of Appeals of Kentucky.
HOWARD et al. v. LOCK.
May 6, 1893.
ACTION: Affirmed.

Appeal from court of common pleas, Knox county.
Not to be officially reported.

Action by W. A. Howard and others against James Lock for the recovery of land. From a judgment in defendant's favor, plaintiffs appeal.

The records relating to a decedent's estate showed that at the suit of "John King" decedent's land was sold to pay the debts of the estate, and that summons in the action had been served on the heirs by a deputy of "John F. King," sheriff, held, on collateral attack by the heirs on the judgment ordering the sale, that the court would not assume, from the similarity of names, that the plaintiff in the action and the sheriff whose deputy served the summons were the same person.

A petition for the recovery of land, which alleges that plaintiffs are the only children and heirs at law of the owner, who died seised of the property in 1869, does not show that plaintiffs owned the land in 1892, when they brought suit.

A second paragraph of a petition which refers to the property as "above described" in the first paragraph, does not contain a sufficient description.

In an action for the recovery of land, the petition alleged that plaintiffs' ancestor had died seized of the property as owner, and the answer admitted the seizure of the ancestor, but denied plaintiffs' ownership at the commencement of the suit, and asserted ownership in defendant. The reply denied defendant's ownership, and set up defendant's title to show that it was not good. Held, that the burden of proof rested on plaintiffs to show the validity of their title, and the invalidity of defendant's.

Hays & Hays and Knott & Edelin, for appellants.
Wm. Lindsay and James D. Black, for appellee.

In the first paragraph of their petition the plaintiffs (appellants here) allege that they are the only children and heirs at law of John Higgins, who died in 1869, the owner in fee of a certain house and lot in Barboursville, Ky. In their second paragraph they assert their ownership of "the property above described," and that the defendant (the appellee) has unlawfully entered thereon, and now wrongfully withholds same. Neither paragraph constitutes a cause of action. The first sets up a state of case barely justifying, at best, a conclusion that, if the ancestor died seised of the property, leaving the plaintiffs his heirs at law, it descended to them in 1869, and they were then the owners of it. From no fact stated does it follow that they owned it in 1892, when they brought this suit. The second paragraph cures the defect in this particular, but is not good, because there is no description whatever of the property sued for. Section 125 of the Civil Code provides that "a petition for the recovery of land, or for its subjection to a demand of the plaintiff, must describe it so that it may be identified." Without demurring, however, the defendant filed his answer, admitting the ownership of Higgins in 1869, but denying the seisin or ownership of plaintiffs at the institution of the suit, or wrongful entry or holding on his part. He asserted ownership and title in himself, and claimed the whole of the property. By a reply the plaintiffs denied that the defendant was the owner, in whole or in part, of the lot, or had title thereto, and attempted in a second paragraph to set up the title under which the defendant claimed, and to show that it was not good. Upon the trial the court held the burden of proof to be on the plaintiffs, and this, the appellants insist, was error. They say that the substantive facts are

(1) seisin by Higgins,
(2) heirship of plaintiffs,
(3) disseisin by defendant,
(4) described premises; and that only a conclusion of law-the illegality of their disseisin-is denied by the defendant; that under no system of pleading could the defendant admit the facts from which the law inferred ownership, and then deny the ownership. This is certainly true, but we think the fallacy of the learned counsel is in assuming that the plaintiffs' ownership can be inferred from the facts which defendant admits. As indicated above, it does not follow that the title that descended to the appellants in 1869 was held by them on the 1st day of April, 1892, when the petition was filed. Moreover, in setting up his claim to the property the defendant was not required to assume the burden of proving it. Subsection 2, � 125, Civil Code, provides that "in an action for the recovery of land the answer of the defendant must state whether or not he claims it, or any part of it; and, if he claims part of it, his answer must so describe such part as that it may be identified. The making of such statement, or of such statement and description, shall not, of itself, throw on the defendant the burden of proving his right to the land claimed by him," etc. On the whole case, the burden was clearly on the plaintiffs. On the trial the plaintiffs showed that their ancestor had not sold or disposed of the property, nor had they done so; but in showing this from the records it was also disclosed that at the suit of John King, curator of the estate of John Higgins, deceased, against his heirs and creditors, the property had been sold, and, by the master commissioner of the Knox circuit court, conveyed to one A. R. Singleton, and by him and others in due form and succession on to the defendant and appellee, Lock; the judgment of sale being for the purpose of paying the debts of the plaintiffs' ancestor. They say, however, that the judgment was void, because they were infants, and that the process appears to have been executed on them by the deputy of John F. King, who was sheriff; and it is assumed, without a word of proof or pleading to that effect, that John King, curator, and John F. King are one and the same person, and, if so, the summons could not lawfully be executed by the plaintiff in his own case, or by his deputy; but the only suspicion of this is to be gathered from the similarity of the names, and it is needless to say that this is insufficient to render void the judgment of the court, rendered some 20 years ago. Nor is it fatal to the judgment of sale that the plaintiff in this old action is styled "curator." The appellants were properly before the court, were represented by a guardian ad litem, and it must be presumed that the chancellor saw to it that the plaintiff had a right of action. The whole of the old record is not before this court.

The judgment is affirmed.

Ky.App. 1893.

HOWARD et al. v. LOCK.

22 S.W. 332, 15 Ky.L.Rptr. 154

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