Bank of Kentucky v. McWilliams

• Decision Date: 10 October 1829
• Citation: 25 Ky. 256
• Parties: Bank of Kentucky v. M'Williams.
• Court: Kentucky Court of Appeals

25 Ky. 256

Bank of Kentucky v. M'Williams.

Court of Appeals of Kentucky.

October 10, 1829

Right of Entry. Evidence.

ERROR TO THE MADISON CIRCUIT; GEORGE SHANNON, JUDGE.

Turner and Crittenden, for appellants.

Caperton for appellees.

OPINION

UNDERWOOD JUDGE:

On the 14th July, 1796, a grant issued to Isaac Shelby, for 800 acres of land. On the 29th July, 1811, said Shelby conveyed 400, part of said 800 acres to Ann Fox, and on the 12th May 1819, he conveyed the residue to Charles S. Todd, and wife Todd conveyed the land to the President, Directors, and Company, of the Bank of Kentucky. On the 24th December, 1821 his wife uniting with him, so far as to convey her right of dower. On the ________ day of ___________ Shelby, Todd and wife, and the President, Directors and Company of the Bank of Kentucky as lessors of the plaintiff, instituted an action of ejectment against the widow and children, of David M'Williams, deceased, to recover the possession of a part of the land, claimed by the lessors, and which was possessed by the defendants. A verdict was found for the defendants, on which the court rendered judgment in their favor; to reverse which the lessors of the plaintiff have appealed to this court.

Twenty years' continued possession, by purchaser, claiming to extent of his marked boundary, tolls right of entry of all adverse claimants, within marked boundary. And, so, although purchaser had no deed at his entry, nor till six years after.

The defendants claimed under a grant from the commonwealth, to Caleb Calloway, dated the 2d. April, 1798; and a deed from Richard Calloway, attorney in fact for said Caleb, dated 28th October, 1806, to David M'Williams, deceased. It is clear, that the plaintiff should have succeeded, if the right of entry in his lessors had not been barred by the statute of limitations. Whether the evidence justified the jury in finding for the defendants, predicating their finding, upon the existence of such a bar, is therefore, the first question for consideration.

The proof is clear that David M'Williams settled on the land common to both patents, as early as the year 1800; and that he and his widow, and children, continued to live on the land from the date of his settlement, up to the time the suit was brought, constituting a period of more than twenty years. It is equally clear that they set up claim to the land, and that their possession was adverse to the title asserted by the lessors of the plaintiff. If, therefore, the possession of M'Williams, at the time he entered on the land, can be considered as extending to the boundary of his deed, then he and his heirs will not be confined to the actual enclosure but the right of entry, in the lessors of the plaintiff, will be tolled to the extent of the land in controversy.

It is satisfactorily established that M'Williams entered under a contract with Calloway, by which M'Williams may be regarded as a purchaser, although his deed was not obtained until 1806. If he entered in that character, the presumption is strong, that it was well understood, by express stipulation between him and Calloway, what were the boundaries of the land, bought by the one, and sold by the other; and that when M'Williams entered, he was possessed in virtue of his entry to the extent of the boundary agreed on.

The evidence removes all doubt, if any could exist. The testimony of Crooke, the surveyor, who laid off the land for M'Williams, fixes the time anterior to M'Williams' entry and settlement; and, although he does not speak positively on the subject, still we confide in his statement, because it is reasonable, that men should have acted as he represents Calloway and M'Williams to have done before M'Williams commenced his improvements.

Things which are reasonable, such as laying off the land, or adjusting the boundary. by definite description, & c., prudent sellers and purchasers, generally, if not invariably, attend to, before the possession is transferred. They should do it, in order to prevent after misunderstanding. There is nothing in this cause which creates a suspicion, that the boundary was not certainly fixed, and agreed on, before M'Williams entered. All the evidence conduces to a contrary belief. It was, so far as the bond in controversy is concerned, a marked boundary common to Calloway's patent, and M'Williams' deed; and we are of opinion that in virtue of D. M'Williams' entry and residence upon the land, from 1800, till his death, and the continued possession of his widow and children since that time, the right of entry in the lessors of the plaintiff, was tolled before the institution of the suit, by a continued adverse possession of more than twenty years, covering the whole land in controversy.

The division of the land between Shelby and Fox, and the conveyance of that part of the land to Fox, which included the houses and actual residence of M'Williams, in 1811, can not operate so as to benefit the lessors of the plaintiff. The statute of limitations commenced running from the time M'Williams entered and settled within the bounds of Shelby's patent; the possession of M'Williams extended to the limits of the land now in controversy; and no subsequent division and sale by Shelby, could stop the running of the statute, or limit M'Williams' possession, to the dividing line between Shelby and Fox. The law of the case would, therefore, be the same, if M'Williams had not, twenty years before suit was brought, extended his clearing across the dividing line between Shelby and Fox, up to the dotted line, 1, 2, as marked on the plat.

The plaintiff's attorney gave notice to Wm. M'Williams, one of the defendants, to produce on the trial, the original title bond, which Calloway executed to David M'Williams. It does not appear that the title bond was produced; and therefore, a motion was made to exclude so much of the testimony of Crooke, as went to prove a contract between Calloway and David M'Williams, deceased, prior to the date of the deed of 1806. The court overruled the motion, to which the plaintiff excepted. The plaintiff predicated his motion to exclude, upon the testimony given by a witness who proved, that four or five years previous to the trial, he heard William M'Williams say, that he then had in his possession the original title bond from Calloway to his father. We perceive no error in overruling the motion. Crooke did not, in giving evidence, pretend to detail the contents of the title bond. It did not appear that Crooke knew that a title bond had ever been executed. He spoke of Calloway and David M'Williams coming to his house, and talking about a trade for the land, in 1798, and his laying off the land for M'Williams in that year; and that he made the survey so that Calloway might make a deed by it.

It may be inferred from all this, that a contract had been entered into between Calloway and M'Williams; but whether verbal or written, is altogether presumptive; and what...