| 13 Ky.L.Rptr. 919, 93 Ky. 41 |
|---|
| Court of Appeals of Kentucky. |
| Campbell v. Disney. |
| March 19, 1892. |
| ACTION: Affirmed. |
Appeal from court of common pleas, Knox county. "To be officially reported." Action by Alexander Campbell against Patrick Disney. Judgment for defendant. Plaintiff appeals. Bennett, J. The appellant brought this action in equity to quiet his title to a tract of land. The petition alleges that the appellant has the legal title to the land, and is in the possession of it The allegation in reference to the appellee's asserting claim to the land is "that the defendant, Patrick Disney, is asserting claim to a portion of said land,-the exact extent of such claim plaintiff does not know; that such assertion of claim on the part of the defendant, though without any foundation on which to rest, nevertheless is a cloud upon the title of plaintiff, impairs, and will continue to impair, the plaintiff's full and free and quiet enjoyment of said land, and impairs, and will in future impair, the salable value of said land." The court sustained a demurrer to the petition, and the appellant has appealed to this court. There need not be a description of the title that the adversary claims, for that would, in many cases, be impossible. But facts should be alleged showing that the defendant was setting up a claim of title or right hostile to the title of the plaintiff; and, that being shown, then the allegation that such claim of title or right clouded the plaintiff's title would have a basis of fact upon which to stand. But where the allegation is that the defendant "is setting up claim to the land," which does not necessarily mean a hostile claim, but it may mean a claim that is friendly to the plaintiff's title, then the additional allegation that such claim clouds the plaintiff's title does not make the expression "setting up claim" equivalent to the allegation that the defendant was claiming a hostile title to that of the plaintiff. To illustrate, suppose the defendant's claim was a lease from the plaintiff, such lease would be a rightful claim, which might greatly lessen the market value of the property, yet no one would contend that an action quia timet would lie in such case. But, in order to maintain the action, it should appear that the claim of title or right was hostile to the title of the plaintiff; then the allegation that such claim of title clouded the plaintiff's title would be a substantial fact, which should be alleged. The judgment is affirmed. Ky.App. 1892. Campbell v. Disney. 18 S.W. 1027, 13 Ky.L.Rptr. 919, 93 Ky. 41 |
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