Bain v. Tye

• Decision Date: 21 October 1914
• Parties: BAIN ET AL. v. TYE ET AL.
• Court: Kentucky Court of Appeals

169 S.W. 843

160 Ky. 408

BAIN ET AL. v. TYE ET AL.

Court of Appeals of Kentucky.

October 21, 1914

Appeal from Circuit Court, Knox County.

Action by George W. Tye and others against Speed Bain and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. D Tuggle and B. B. Golden, both of Barbourville, for appellants.

Dishman Tinsley & Dishman and J. M. Robsion, all of Barbourville, for appellees.

MILLER J.

On May 29, 1855, Moses F. Ingram surveyed and procured a patent for 50 acres of land situated on the Oatfield branch of the waters of Greasy creek, in Knox county. The boundary of said land may be read in the opinion in Sprouls v. Hayes, 143 Ky. 532, 136 S.W. 1199, where this tract formerly was in litigation. Moses F. Ingram also acquired other tracts of land in the immediate neighborhood, including a tract of 50 acres surveyed August 16, 1866, and a third tract of 100 acres, surveyed December 15, 1870. Early in January, 1877 Moses F. Ingram having determined to move to Texas, he "sold out" his lands in Kentucky to Powell Centers and William H. Ingram for $300 in cash. Moses F. Ingram made a deed to Centers and William H. Ingram on January 27, 1877, carrying out the sale, whereby he conveyed to his grantees "about three hundred acres, be the same more or less," and bounded as follows:

"Beginning on the north side of the Pine Mountain at said Ingram's back line; running with a conditional line between M. F. Ingram and Wilk Thompson to Greasy creek; thence down said creek to Henry Nelson's line; thence crossing said creek, running up the Brush creek ridge with said Henry Nelson's conditional line to the top of the ridge and a corner of T. J. Ingram; thence with T. J. Ingram's line to a locust tree near the head of the Oatfield branch on the top of said ridge, T. J. Ingram's corner; thence across the head of the Oatfield branch with said M. F. Ingram's line to the Crank branch gap; thence down a spur of the ridge with M. F. Ingram's line to a corner of a survey made by George E. Golden; thence with said Golden's line down the ridge to Greasy creek; thence crossing said creek and up the Pine Mountain with M. F. Ingram's and Golden's line said M. F. Ingram's back line; thence with said Ingram's line to the beginning.

The parties of the second part, Powell Centers and Wm. H. Ingram and their heirs, to have and to hold free from M. F. Ingram and his heirs; and the said M. F. Ingram binds himself and his heirs as far as the title vested in him to them to hold said land. The above described land and boundary contains a portion of a tract of land deed to said M. F. Ingram by his father Wm. Ingram, and one fifty acre survey in his name bearing date the 29th day of May, 1855, one other fifty acre survey made in his name bearing date the 15th day of August, 1856, also one hundred acres surveyed by him on ______ day of ______ 18--; this the day and date above written, signed and delivered."

This deed was duly recorded on November 26, 1877. By subsequent conveyances the land embraced in the 50-acre survey of May 29, 1855, was conveyed to the appellees Tye, Hays, and Dishman, and by them to the appellee the Greasy Brush Coal Company, the present owner. Moses F. Ingram carried out his intention of leaving Kentucky, and went to Texas in 1877. The proof shows his intention was to live there permanently; but, on account of the ill health of some of his family, he returned to Kentucky in 1878, and settled in the immediate neighborhood from which he had removed the year before. He lived there, always as a renter, and without making any claim whatever to any of the land which he had formerly owned, until his death in 1889. His heirs at law, consisting of his children and grandchildren, also lived in the neighborhood, and none of them made any claim to this property until May, 1911, when they hurriedly built a "shanty" on the 50-acre survey of May 29, 1855, and moved into it, all in one day. Their purpose was to assert title to this survey and support their title by possession. On the next day the appellees, Tye and his joint owners, brought this action against the heirs of Moses F. Ingram, seeking to enjoin them from trespassing upon said land, or from claiming title thereto, and to quiet the plaintiffs' title. Upon the hearing the chancellor granted the relief sought, and from that judgment the defendants prosecute this appeal.

The sole question for determination is this: Is the Moses F. Ingram 50-acre survey of May 29, 1855, embraced in the land conveyed by the deed of January 27, 1877, from Moses F. Ingram to Powell Centers and William H. Ingram? If it is so embraced, the plaintiffs below, who are appellees here, are unquestionably the owners of the 50 acres, and the judgment of the chancellor is correct. On the other hand, if the 50-acre survey of May 29, 1855, was not embraced in the 300-acre tract, then the title to the 50-acre tract remained in Moses F. Ingram and descended to his heirs; and if that be true, the judgment of the chancellor is wrong and should be reversed.

Appellants rest their case upon the well-known legal proposition that in case of a conflict between the particular description and the general description in a deed, the particular and not the general description controls. It will be noticed that the particular description of the 300 acres sold by Moses F. Ingram to Powell Centers and William H. Ingram in 1877, and contained in the granting clause thereof, contains neither calls nor distances; they are confined to the natural objects for a boundary. The general description contained in the habendum clause expressly says the 300 acres contains, among other lands, the 50-acre survey in the name of Moses F. Ingram, bearing date the 29th day of May, 1855. It is apparent from the face of the deed that it was not drawn by an expert, and was in a large measure drawn from memory so far as the boundaries were concerned. This idea is borne out by the fact that in attempting to describe the 50-acre survey of August 16, 1866, the deed describes it as the 15th day of August, 1856.

It is an elementary rule in the interpretation of deeds that the intention of the parties should be effectuated, and in doing this a liberal construction is given to deeds inartificially and untechnically drawn. The intent must primarily be gathered from a fair consideration of the entire instrument and the language employed therein, and should be consistent with the terms of the deed, including its scope and subject-matter. Heingley v. Harris, 1 Ky. Law Rep. 55; Davis v. Hardin, 80 Ky. 672; Ferrill v. Cleveland, 6 Ky. Law Rep. 512.

Furthermore effect and meaning must be given...