Avey v. Hogancamp

• Decision Date: 12 December 1916
• Citation: 189 S.W. 917,172 Ky. 675
• Parties: AVEY v. HOGANCAMP ET AL.
• Court: Kentucky Court of Appeals

189 S.W. 917

172 Ky. 675

AVEY v. HOGANCAMP ET AL.

Court of Appeals of Kentucky.

December 12, 1916

Appeal from Circuit Court, Carlisle County.

Action by E. W. Avey against John Hogancamp and others. From a judgment for defendants, plaintiff appeals. Judgment affirmed.

E. T Bullock, of Clinton, for appellant.

John E Kane, of Bardwell, for appellees.

CARROLL J.

In 1910 Mrs. Hogancamp, who owned the life estate in a body of land located on the Mississippi river, through the agency of her son, leased this land to the appellant, Avey, under a contract reciting that Avey should have the land "for one year, with the privilege of five years, provided my mother should live that long and that a division should not be made by the heirs; and said Avey agrees to pay fifty dollars per annum for every year." Under this lease Avey took possession of the land, and between the date of the lease and February, 1912, when Mrs. Hogancamp died, Avey purchased the interest of several of the remaindermen, so that he owned at her death a 53/120 undivided interest in the property, and was in the possession of the entire estate, or at least all of it that was in cultivation. After the death of Mrs. Hogancamp the remainder interest that had not been purchased by Avey came into the ownership of the heirs of Mrs. Hogancamp, who had not sold out to Avey.

After Mrs. Hogancamp's death, and in 1913, it appears that a suit was brought by the owners of the land for its division and in that suit Avey filed his answer in which he said that he was the owner by purchase from certain named heirs of a 53/120 interest and joined in the prayer of the petition for a division among the owners of their respective interests in the land. In February, 1915, there was a judgment in this suit for division setting apart the interests to which the several owners of the land were entitled, and commissioners were appointed to divide the land. In June, 1915, the commissioners filed a report of division, allotting to Avey his interest in the land, and to the other owners their interests.

Going back now a little: In April, 1915, Avey sued out a writ of forcible entry in a court of a justice of the peace against Joe Hogancamp and other named owners of an interest in the land, complaining that on April 5, 1915, they had forcibly entered into a field then in his peaceable possession. On a trial in the county there was a verdict of guilty. This verdict was traversed, and in the circuit court there was a verdict of not guilty, and from the judgment on this verdict Avey prosecutes this appeal.

It will be observed that at the time this forcible entry proceeding was instituted against Joe Hogancamp and the other joint owners with Avey of the land the report of the commissioners who had been appointed to divide the land had not been made, although judgment in this suit for division had been entered and commissioners appointed, who, as appears, had prior to this time partly made the division. But, at any rate, at the time the forcibly entry proceeding was instituted, although the commissioners had not completed their work, Avey and the defendants in the forcible entry proceeding were joint owners of the land, each of them owning an undivided interest therein.

The trial of the case in the circuit court was had in October, 1915, after the commissioners had completed their work and the interests of the respective owners had been allotted; so that, when the writ was issued, Avey owned an undivided 53/120 interest in the land, and the defendants in the forcible entry proceeding owned a 67/120 interest, and Avey, as stated, was in the possession of the whole of it, as he claims, under his contract with Mrs. Hogancamp, although Mrs. Hogancamp, who owned only a life interest, died in 1912.

On this appeal it is urged as grounds for reversal that the court erred in permitting to be read as evidence to the jury the answer of Avey in the suit for division, the judgment in this suit, and the report of the commissioners. At the time of the trial in the circuit court, and when the forcible entry proceeding...