Asher v. Howard, &C.
| Decision Date | 28 February 1906 |
| Parties | Asher v. Howard, &c. |
| Court | Kentucky Court of Appeals |
Appeal from Bell Circuit Court.
Judgment for defendants, plaintiff appeals. Affirmed.
HAZELRIGG & HAZELRIGG for appellant.
N. B. HAYS of counsel.
WELLER & POINTS and E. N. INGRAM for appellee.
OPINION BY JUDGE NUNN—Affirming.
This was an action of ejectment, brought by appellant against the appellees to recover 200 acres of land described in the petition. The appellees answered and denied the appellant's ownership, and alleged that they were the owners thereof. A trial was had, and resulted in a verdict and judgment for the appellees, from which this appeal is prosecuted.
On the trial it was made to appear that appellant claimed to be the owner of the land by reason of a patent issued to her by the Commonwealth on a survey dated the 7th day of September, 1900. She introduced proof tending to show that the land was vacant and unappropriated at the time she made entry and survey thereon. The appellees introduced proof tending to show that none of the land patented by appellant was vacant and unappropriated at the time she obtained her patent, but, on the contrary, it was covered by two old patents issued by the Commonwealth — one to Ed. North, the other to Renfro. There was a conflict in the proof as to whether these two patents joined; but it was pretty clearly shown by the prof that one Farmer (the vendee of Renfro, the vendee of the father of appellees) and Ed. North agreed and marked a division line between their survey or patents; that they and their vendees claimed and recognized this line, and held the actual adverse possession of that on either side, from the date of the agreement until the institution of this action, which was more than 30 years.
The appellant contends that appellees abandoned their claim to this land, under their possessory title, by obtaining a patent to 100 acres of it, after their father's death, and just prior to the date of her patent. The appellees proved that after their father's death it was rumored that appellant's husband and others were claiming that this land was vacant, and they were threatening to patent it. The appellees, not knowing the truth in reference to the matter, became frightened; hence they patented 100 acres of it in their own name. They did not intend by this to surrender any part of their claim on this land owned by their father. We are of the opinion that if their father actually owned the land they did not lose it by their entry and obtension of these patents. If they owned it, they could not part with the title in this manner. This evidence had the effect only to corroborate appellant's claim that it was vacant land.
Appellant also contends that the court erred in permitting the appellees to prove that they, and those under whom they claim, had been in the actual adverse possession of the land in controversy, claiming it as their own, for more than 30 years, and that the court erred in submitting the issue of adverse possession by instruction to the jury, for the reason that appellees did not plead as a defense in their answer the statute of limitations. It is true that to avail one's self of the defense of the statute of limitations it must be pleaded. In our opinion this principle does not apply to the case at bar. It has often been held by this court that the plaintiff in an action of ejectment need not file his title papers with his pleadings; nor is it necessary for him to state the manner in which and from whom he obtained the title. Hence these are matters of evidence. It has been repeatedly held by this court that the plaintiff in an action of ejectment may recover on a possessory title, though not pleaded; that such title is as valid as a paper title. See Hamilton v. Hamilton, 29 S. W., 876; 16 Ky. Law Rep., 793; Ratcliff v. Elam, 21 S. W., 352; 14 Ky. Law Rep., 772; Chism v. Trent, 10 S. W., 648; 10 Ky. Law Rep., 849; Moran v. Higgins, 40 S. W., 928; 19 Ky. Law Rep., 456; and Dorch v. Thompson, 12 B. Mon., 380.
Sub-section 2 of section 125 of the Civil Code of Practice provides: "In an action for the recovery of land, the answer of the defendant must state whether or not he...
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