Wagner, &C. v. Hatcher
| Decision Date | 09 March 1910 |
| Court | Kentucky Court of Appeals |
| Parties | Wagner, &c. v. Hatcher |
Appeal from Pike Circuit Court.
From the judgment plaintiffs appeal. — Affirmed.
WALTER S. HARKINS, JAS. GOBLE, ROSCOE VANOVER, and S. M. CECIL for appellants.
R. C. BURNS for appellee.
On the 26th day of February, 1892, T. B. Scott purchased from one Meyer Schamburg a certain tract of land in Pike county, Ky., and received a conveyance therefor. On June 4, 1892, Scott and wife sold and conveyed this land to T. P. Wagner. Before these sales A. J. Auxier and James M. York, on the 18th day of June, 1890, instituted a suit against Meyer Schamburg and others for a debt due them. They procured orders of attachment against the property of the defendants in that action. The defendants owned two tracts of land. Auxier and York obtained judgment for their debt at the January, 1899, term of the Pike circuit court, sustaining their attachment and decreeing a sale of the two tracts of land to satisfy the judgment. The two tracts in question were sold on March 20, 1899, and purchased by James Hatcher. The sale was approved by the court, both tracts were conveyed to Hatcher, and he was awarded a writ of possession. Neither Scott, Wagner, nor the latter's wife was a party or privy to this action. Thereupon Wagner instituted suit against James Hatcher to cancel the deed to him in so far as it embraced the land purchased by Wagner, and to quiet his title to same. On the trial of that case it appeared that the attachment was levied by delivering a copy to J. H. Leslie and posting a copy on J H. Leslie's land. The tract in controversy was situated about one-half mile from the land on which the copy of the attachment was posted. The lower court, therefore, held that the levy of the attachment was not sufficient to create a lien upon the tract in controversy which would affect a subsequent purchaser, lessee, or incumbrancer. Judgment was accordingly entered in favor of Wagner. On appeal to this court the judgment was affirmed. Hatcher v. Wagner, 120 Ky. 603, 87 S. W. 778, 27 Ky. Law Rep. 1016. After the judgment in the above action was affirmed by this court, Wagner and his wife instituted this action against Hatcher for damages for unlawfully depriving them of the possession of their land during the pendency of the action above referred to. The action was instituted at common law, but by consent was transferred to equity. The court awarded the Wagners damages in the sum of $5. From that judgment they have appealed.
The various grounds for recovery set out in the petition are as follows: (1) Hatcher took possession of about six acres of land outside the boundary of land which he claimed to have purchased and for which he was awarded a writ of possession, and kept appellants out of the possession and use of it for three years. Its rental value was $100 per year. On this item appellants sought a recovery of $300. (2) Hatcher took possession of 12 acres of clover, also outside the boundary of land which he claimed to have purchased, tore down the fence, and let stock of the neighborhood run on the clover and destroy it. This resulted in a loss of $200. (3) Hatcher took possession of a certain field within the boundary claimed to have been purchased by him, and withheld the possession thereof from appellants for three years, to their damage in the sum of $135. (4) While Hatcher was claiming the land, appellants sold a part of it to James Clark, but, because of Hatcher's claim, Clark refused to pay for it. Clark was sued by Hatcher for taking timber from the land, and appellants had to defend this suit at a cost of $300. (5) Just before Hatcher took possession of the land a large amount of timber growing on it was killed by fire. Appellants made preparation to take it to market before it became damaged, but Hatcher interfered, claimed the land, and threatened to sue them if the timber was taken off; thus preventing them from doing so, and it became a total loss. The timber was worth $1,500. (6) Appellants were preparing to clear for cultivation a portion of the land consisting of about 12 acres, and Hatcher prevented this for three years, which damaged them in the sum of $300. (7) After Hatcher had purchased and obtained a deed for the land, appellants were forced to prosecute a suit against him to cancel his deed and quiet their title. For this purpose they employed counsel and paid them $385. It cost them $500 in money and time to prosecute the suit and protect their land against Hatcher's unfounded claim. This loss was the result of Hatcher's unfounded claim, as he had no reasonable grounds to believe that he was the owner of the land.
These claims for damages were paragraphed as above set out. Hatcher demurred to each paragraph of the petition, and it was sustained to the third, fourth, fifth, sixth, and seventh paragraphs, and overruled as to the first and second. Thereupon appellants amended their petition. Hatcher then demurred to each paragraph of the amended petition. It was overruled as to the first, second, third, and fifth paragraphs, sustained to the fourth and sixth paragraphs, and to all that part of the seventh paragraph which sought to recover the sums paid to attorneys. The demurrer was overruled as to the claim for expenses in prosecuting the suit. Thereafter Hatcher filed an answer, in which he admitted taking possession of the land, but claimed that it was merely formal, and that it was not detained from appellants for a single day. The answer also contains a denial of the allegations in the various paragraphs to which the demurrer had not been sustained.
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