17 Ky.L.Rptr. 657
Court of Appeals of Kentucky.
Oct. 5, 1895.
ACTION: Affirmed.

Appeal from circuit court, Knox county.

"Not to be officially reported."

Action by William Girdner against John Girdner. From a judgment for defendant, plaintiff appeals.

This is an action quia timet brought by John Girdner against his brother William, claiming that he is the owner and in the actual possession of a certain tract of land in Knox county. William Girdner answered, alleging he is the owner of the land, and that plaintiff's possession was wrongful, and asked to have the land adjudged to him. It is insisted that the facts alleged in the petition did not entitle the plaintiff to maintain an action quia timet, because it is not sufficiently shown the claim of title or right was hostile to the title of plaintiff. Granting this were true, still the defect, if any, was cured by the answer, wherein defendant asserted that he was the owner of the land, and asked to have the possession adjudged to him. In 1862 Michael Girdner owned the land in controversy, as well as other land of which this piece was part of the common boundary. In 1862 he executed and delivered to the appellant, William Girdner, a deed for a part of his boundary of land,- eastern end of the farm. In 1873 he conveyed to the appellee, John Girdner, part of the same boundary, but on the opposite end of the farm. Michael Girdner retained possession of the land in controversy from the time he made the deed to William Girdner, in 1862, until 1885, when he sold and conveyed it to the appellee, John Girdner. It is claimed by William Girdner that his deed embraces the land in controversy, and that he was the owner by virtue of it when his father, Michael, conveyed it to John Girdner. If William's contention be correct, then he acquired by his deed the title to the entire tract, except that which was conveyed to his brother John in 1873. If John's contention be correct, then the land of which the father retained possession-the land in controversy-belongs to him by his purchase in 1885. The question presented by the record in the first instance is as to whether the deed of Michael Girdner embraces the land in controversy. The controversy arises from the difficulty in locating a certain line called for in the deed. The deed calls to run "to a spur of the mountain leading across said farm, with the lane as it now runs, a southeast course to the back line." There appears to be more than one "spur of the mountain" to which the deed might have referred. It is claimed by William there was a lane running across the farm to which the deed referred, and that that lane was situated where he insists the true line should be located. On the other hand, John claims the lane referred to by William did not exist when the deed was made to William. He also claims that the line in dispute runs over a certain spur of the mountain, and with a lane then and now in use, and that these were the objects called for in the deed in describing the line running across the farm. Much testimony was taken by the parties conducing to sustain the several contentions. Out of this conflict of testimony the court reached a conclusion, which was that the land in controversy belonged to John Girdner, and so adjudged it to him. Independent of the other proof as to the location of the line, facts and circumstances developed in the record strongly sustain the judgment of the court. After the deed to William, his father remained in possession of the land in controversy for more than 20 years, claiming it as his own, paying taxes, and exercising acts of ownership over it. A line was established between it (and division fence built thereon) and the part William took possession of under his deed, and both William and his father recognized it as the line between the tracts of land. No one proves that, during the more than 20 years after the deed was made to William, the father ever disclaimed ownership of the land, or said it belonged to his son William, nor does it ever appear that, during that period, William claimed or exercised acts of ownership over it. When William sold the part of which he took possession to one Lewellen, he made him a deed therefor, and referred to the land in controversy as that of Michael Girdner. It is true that William Girdner testifies that it was an agreement between himself and father that his father should retain possession of the land in controversy, during his life, pay taxes on it, etc. This agreement is claimed to have been made at the time the deed was made to William, and as part consideration for the conveyance to him. When this testimony was given his father was dead. It was to affect one (John Girdner) living, and who was not present when the transaction is claimed to have taken place. It is testimony of a party for himself, and concerning a transaction with one dead when the testimony was offered. Such testimony is clearly incompetent. From the foregoing views of the court, the necessity of considering the question of estoppel raised is unnecessary.

Judgment affirmed.

Ky.App. 1895.


32 S.W. 266, 17 Ky.L.Rptr. 657

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