Black v. Cox

• Decision Date: 30 September 1904
• Citation: 82 S.W. 278
• Parties: BLACK v. COX et al.
• Court: Kentucky Court of Appeals

82 S.W. 278

BLACK v. COX et al.

Court of Appeals of Kentucky.

September 30, 1904

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Controversy between S. Black and Lizzie Cox and others. From the judgment, Black appeals. Affirmed.

Frank Chinn, for appellant.

Ira Julian, for appellees.

NUNN J.

The subject of this action is a lot with two small houses on it situated in the city of Frankfort, Ky. of which appellant and appellees claim to be the owners. Appellant obtained the legal title to this property by a conveyance from one Baltzell in the year 1869. The husband and ancestor of appellees took possession of this lot in the latter part of that year or the first of the succeeding year. The evidence is absolutely silent as to the circumstances under which he took possession--whether as a purchaser or a tenant of the appellant. The appellant gave his own deposition in his behalf, which was objected and excepted to by appellees which, under section 606, Civ. Code Prac., was incompetent evidence, as all of the statements in his deposition were with reference to alleged contracts, statements, and conversations had with the deceased, Stephen Cox. This testimony being incompetent leaves the appellant without any proof showing the circumstances under and by which the deceased, Stephen Cox, entered upon and occupied this property from the year 1869 to the date of his death in the year 1901. Not a witness stated that appellant made any claim to be the owner of this property, or have any interest therein, from the year 1869 until after the death of Stephen Cox. Appellant's counsel claims that, as Stephen Cox entered into the possession of this property, and held it by the permission of the appellant and under his title, such holding by Stephen Cox never ripened into title as against the appellant; that it is conclusively presumed, in the absence of proof to the contrary, that Cox's holding continued as it began. This contention cannot avail appellant, as he introduced no proof that Stephen Cox entered as his tenant, or that he ever recognized appellant's title to the property. On the contrary, the proof shows by the neighbors of Cox that he claimed it as his own, and exercised acts of ownership over it by improving it from the time he entered on it to the time of his death, which was more than 32 years; that he listed it for taxation and paid the taxes thereon; that during...