Barr v. Potter

• Decision Date: 13 June 1900
• Citation: 57 S.W. 478
• Parties: BARR et al. v. POTTER. [1]
• Court: Kentucky Court of Appeals

57 S.W. 478

BARR et al. v. POTTER. ^[1]

Court of Appeals of Kentucky.

June 13, 1900

Appeal from circuit court, Pike county.

"Not to be officially reported."

Action by Sarah D. Barr and others against George Potter to recover land. Judgment for defendant, and plaintiffs appeal. Reversed.

James M. Roberson and James M. York, for appellants.

Bart Belcher, J. E. Stewart, and R. T. Burns, for appellee.

BURNAM J.

Appellants sought in these suits to recover possession of a tract of land situate on the waters of Beaver creek, in Pike county and damages for cutting, destroying, and hauling away timber therefrom. The two actions were, by order of court consolidated, and on final trial a verdict was rendered for the defendant; and, a motion for a new trial having been overruled, this appeal is prosecuted.

To sustain their contention, appellants relied upon a paper title. The facts as shown by the record are as follows: On the 10th day of April, 1860, a patent was issued by the commonwealth of Kentucky to John and David May for a tract of 1,000 acres of land lying in Pike county, on the waters of Beaver and Grassy creeks, tributaries of the Russell Fork of the Big Sandy river. David May died in 1862, and on the 16th day of August, 1865, John May conveyed the whole tract to Thomas P. May. Thomas P. May conveyed the same land in October, 1870, to James D. Belcher, and on the 3d day of July, 1871, Belcher conveyed the land to A. F. and E. H Baum. In April, 1873, A. F. Baum conveyed his undivided half interest to Sarah D. Barr, one of the appellants herein, and E. H. Baum's interest was sold under foreclosure proceedings in the Pike circuit court, and was bought by Joseph H. Hill. The appellant Joseph H. Hill, Jr., is his only surviving child. These conveyances and transfers are all matters of record, and are set out in the bill of exceptions. The heirs of David May, before the institution of this suit recovered from appellants one-half of this tract of land, and the record of that proceeding is also a part of the bill of exceptions. The answer of appellee denied the title of appellants, or that he was in possession of the land covered by their patent; alleged that he was the owner of the land occupied by him by grant, and that he and those under whom he claimed bad been in the adverse possession of all of said land for more than 15 years before the institution of the suit, and that the patent to John and David May was void because the same land had been previously patented to other parties, but on this latter point he introduced no proof. The proof in behalf of appellee shows that he had deeds covering the greater part of the land in controversy, and he attempts to trace title to the commonwealth; but the patents issued to the parties under whom he claims are all junior to the grant under which appellants derived their title, and practically the only defense relied upon is adverse possession and the plea of limitation. On this point appellee testifies that he had lived on the land about eight years before the beginning of the suit; that, before he moved on the land and took possession, one F. A. Smiley had cut timber thereon, and built a log cabin on the land; that at the time he moved on the land no one was living on it, nor had any of it been inclosed or cultivated; that the occupation by Smiley was seven or eight years before, and that during the interval between the time when Smiley built the cabin and the time he moved on the land no one had occupied...