| 17 Ky.L.Rptr. 1275 |
|---|
| Court of Appeals of Kentucky. |
| BEATY et al. v. DOZIER et al. |
| Feb. 25, 1896. |
| ACTION: Reversed. |
Appeal from circuit court, Knox county. "Not to be officially reported." Action by John M. Beaty and others against William Dozier and others. Judgment for defendants. Plaintiffs appeal. HAZELRIGG, J. Armstead Parrott was the owner of a large body of land in Knox county, which he directed by his will to be equally divided between his sons John and Thomas. If they could not agree on the division, the county court was to appoint commissioners for that purpose. The sons were the owners of other lands in the same vicinity, not held jointly, and owned the tract in contest jointly, having a patent therefor from the commonwealth as of January 16, 1857. After the death of their father, a division of the land was made by commissioners, and whether that division embraced the whole of the lands owned by the brothers, or only that which they had inherited from their father, is the question presented on this appeal. The deeds carrying out this division which the two brothers made to each other in 1869 conclude the description of the lands respectively conveyed therein with the words, "being the land that was willed to me by my father," which, in the absence of a claim of mistake or fraud, would seem to be conclusive of the question involved. No such claim is made in the pleadings. The action was brought by the children and heirs of Thomas against the children of John for a partition of the land embraced in the patent of 1857. The answer is that the deed of Thomas to John in 1869 embraces this land, and, moreover, that John, in 1872, conveyed the same land, with other lands, to his daughter, one of the defendants, who had lived in "the peaceful enjoyment and possession of same ever since." These allegations were each denied. The boundary proper set out in the deed is certainly indefinite and ambiguous, and, ordinarily, proof showing the true meaning and intent of the parties to the instrument would be competent; but here the language expressly describes the land as that "willed" to the son by his father, and, as already indicated, this language must be given a controlling effect. The proof does not show any actual adverse possession, and, if it did, the plea is not properly made. To say that one is living in the peaceful enjoyment and possession of land is not equivalent to pleading an actual possession and an adverse holding against the party seeking to enter under a senior grant. The learned trial judge was of opinion from the proof that by the division agreed on between John and Thomas Parrot the tract in contest fell to John, and hence dismissed the petition. This finding is contradicted by the deeds of parties now long since dead, and we must hold that only the lands "willed" by Armstead to his son Thomas passed under the latter deed to John. Reversed for judgment for partition. Ky.App. 1896. BEATY et al. v. DOZIER et al. 34 S.W. 524, 17 Ky.L.Rptr. 1275 |
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