Alexander v. Hill

• Decision Date: 28 February 1908
• Citation: 108 S.W. 225
• Parties: ALEXANDER et al. v. HILL.
• Court: Kentucky Court of Appeals

108 S.W. 225

ALEXANDER et al. v. HILL.

Court of Appeals of Kentucky.

February 28, 1908

Appeal from Circuit Court, Wayne County.

"Not to be officially reported."

Suit to quiet title by Pinkie Hill against Elizabeth A. Alexander and others. From a judgment for plaintiff, defendants appeal. Affirmed.

O. H Waddle, for appellants.

Joe Bertram, for appellee.

LASSING J.

This litigation involves the location of a survey of 100 acres of land on the Cumberland river, in Wayne county, Ky. entered by J. W. Mills on the 4th day of January, 1858, and patented to him in July of the same year. He had previously had surveyed and patented to him another 100 acres, adjacent thereto, and had purchased other lands in the same locality, including a 250-acre survey known as the "Robert Parmley survey," which tract lay to the south of the lands patented by him. Many years before the institution of this litigation J. W. Mills had sold and conveyed these lands including the land in controversy, to one John Barrier. Barrier moved into the residence which had been occupied by Mills, and remained there for some years. In 1880 F. N. Alexander had surveyed and patented to him 200 acres of land and in 1881 a second survey of 200 acres. Thereafter, by purchase, Alexander became the owner of all of the land lying between the lands patented by him and a tract of land known as the "Ryan survey," containing 50 acres. After the death of John Barrier his widow and children sold all of his lands in that vicinity to Dr. Medekle and John Hill. These purchasers failing to pay for the land, it was sold to satisfy the purchase-money lien debts, and at the commissioner's sale William Hill became the purchaser thereof. Later he sold and conveyed his purchase, including the land in controversy, to Pinkie Hill. She sold the 250 acre survey to other parties. This litigation grows out of a conflict between the boundary lines of the Alexander patents and the old Mills survey. A controversy having arisen between Pinkie Hill and Alexander, she filed her suit in equity, setting up what she claimed to be the true boundary of her survey, and asking that her title thereto be quieted. The boundary of the tract of land claimed by her as being embraced within the original Mills patent in controversy includes some 600 or 700 acres of land, and the figure of her survey as described by her boundary in the petition, while conforming in some particulars, differs widely in others from the figure of the original survey.

Three questions are raised upon this appeal for our determination. First. Was the appellee in the actual possession of the Mills 100 acre survey at the time she filed her suit to have her title quieted? Second. Is the beginning corner of appellee's survey correctly located by the trial court at the point where a poplar tree once stood, at the northeast of the Hill house? Third. Did the trial court err in ignoring the calls as to course and distance, given in the patent, and in changing the course and extending the distance so as to extend the boundary to the natural objects and established lines and points called for in the patent?

On the question of possession there is quite a conflict in the testimony. Appellee did not testify at all; for the reason, we presume, that she had no personal knowledge of the exact location of the boundary line of her survey, and had to depend upon the testimony of others to establish same. After the Parmley tract was sold to Welch, Wiseman, and Tuttle, the old Mills residence was still occupied by the Hills. It is insisted for appellants that this residence stood upon the Parmley tract, while for appellee it is insisted that it stood upon the old Mills tract, or the land in controversy One of the surveyors places it upon one tract, another upon the other; while still other witnesses say that it stood upon unpatented land lying between the two tracts. Evidently at the time of the sale the Hills regarded the dwelling as standing upon the old Mills survey, for appellee sold the Parmley tract by metes and bounds and retained the house, or, rather, continued to live in the house for some time thereafter. The present dwelling is located near where the old Mills dwelling stood on the Mills tract, and near the Parmley tract. Appellee, under the same conveyance, became the owner of the Parmley tract as well as the land in controversy. When she sold the Parmley tract, it was surveyed, and its lines were run, and it was ascertained that the line running from the "Pine" corner toward the beginning corner of the old Mills 100-acre survey left the dwelling upon the Mills survey. At that time there was no question as to the true location of the Parmley line, and no question had been raised as to the location of the Mills land. Both vendor and vendee accepted the line run as correct, and recognized that the dwelling stood upon the land in controversy. It is urged that the line between the Parmley and Mills tracts was not correctly run at that time. This may be so; yet the fact remains that she only sold and conveyed the land to the line as then located and fixed, and retained in her possession the remainder of the land north of the line as then fixed. So that, whether the land upon which the house stands is in fact included within the original 100-acre Mills survey or not, it is certain that appellee was in the actual possession thereof, claiming same at the time of the institution of her suit, and her vendors had so held it for many years. The chancellor so found, and inasmuch as he was, no doubt, acquainted with the witnesses who testified upon this point before him, and familiar with their surroundings and environments, we feel that his judgment is entitled to much weight, and should not be disturbed.

On the question as to whether or not the beginning corner of this 100-acre survey has been correctly located, there is also a sharp conflict between the testimony offered by appellee and that offered by appellants. The witnesses for appellee testified positively that the beginning corner had been correctly located and fixed in the judgment of the trial court at the point northeast of the Mills dwelling; whereas for appellants, the witnesses testified with equal firmness that the true location of the beginning point should be fixed south of the Mills residence. For appellee there testified upon this question of location the son and daughter of J. W. Mills, both of whom are now old people. They testified positively that at the time the survey was made the poplar tree was standing, that they saw the surveyor when he began making the survey; saw him set his compass at the poplar...