Board of Park Com'rs of City of Louisville v. Marrett

• Decision Date: 13 April 1904
• Parties: BOARD OF PARK COM'RS OF CITY OF LOUISVILLE v. MARRETT.
• Court: Kentucky Court of Appeals

80 S.W. 166

BOARD OF PARK COM'RS OF CITY OF LOUISVILLE v. MARRETT.

Court of Appeals of Kentucky.

April 13, 1904

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"Not to be officially reported."

Action by the Board of Park Commissioners of the City of Louisville against George J. Marrett. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Kohn Baird & Spindle, H. L. Stone, C. M. Linsay, and R. L. Greene for appellant.

Augustus E. Wilson and Morris B. Gifford, for appellee.

HOBSON J.

Roman Marrett owned a tract of land in Jefferson county, conveyed to him in 1845 by Stephen Sanders, who bought it at a commissioner's sale in a chancery action to foreclose a mortgage given by William Sanders in 1836, the tract conveyed to Marrett being known as lot 12 in that sale, the whole tract consisting of 362 acres, and being cut up into smaller tracts for the purposes of sale. Sanders had sold 100 acres to Walter Young, and, the remainder of the land not paying the mortgage debt, 60 acres on the north end of the Young land was sold, and purchased by Churchill, who conveyed it to James Woods. On August 25, 1856, Marrett conveyed 14 acres off his tract to his sister, Rose Demange, and on September 29, 1866, he conveyed to his son, the appellee George Marrett, the tract conveyed to him, less the land conveyed to his sister. Rose Demange, on July 8, 1891 conveyed her tract to the board of park commissioners of the city of Louisville, who had previously bought from Patrick Joyes a tract lying south of it, and about the same time or a little afterward bought from George Marrett 15 acres lying east of the Demange tract. This controversy turns on the proper location of the Demange tract of 14 acres, which in the deed to her is bounded as follows: "Beginning at said Marrett's corner in James Woods' line, also corner to Wm. P. Thomasson, a stake and running thence with said Thomasson's line north 32 poles to a stake; thence east 70 poles to a stake; thence south 32 poles to a stake on the side of a hill in said Woods' line; thence with said line west 70 poles to the beginning." Thomasson's land lay west of Marrett's and north of the Woods tract. The situation is shown on the following map, on which the Marrett tract is represented, as claimed by appellee, by the lines A, Y, B, C, D, E, F, 6, 5, 7, T, A, the Thomasson tract lying west of it, the Woods tract south of Thomasson's, the Joyes tract east of Woods, and the Demange tract as claimed by appellee being represented by the lines 5, 6, 8, 7:

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On the other hand, appellant maintains that the Demange tract was actually located on the lines 1, 4, 3, 2. The controversy is over the seven acres embraced within the lines 2, 3, 8, 7. If the line 2, 3, is the north line of the Demange tract, the land in controversy is the property of appellant. But if the north line of the Demange tract is from 7 to 8, the seven acres is the property of appellee.

The proof shows that when the park commissioners bought the land of Mrs. Demange both she and George Marrett showed them the lines of her tract as claimed by the park commissioners, and indicated on the map by 1, 4, 3, 2. The corners were pointed out at 2 and at 3, as well as at 1 and 4, and there was no question then as to this being her land. It was surveyed by a surveyor employed by the park commissioners, and Marrett also pointed out to him the corners. Mrs. Marrett testifies that her brother sold her to the line 2, 3, and that she had always held up to this line, which included some apple trees which were recognized as hers. About the time of the trade with Mrs. Demange the park commissioners were on a trade with Marrett for 15 acres of his land lying east of her tract, and when this land was surveyed out it was discovered that the calls of Marrett's deed took him from E to F and from T to 5. He then set up claim to the park commissioners that his line ran from 5 to F, and not from 1 to X, as had been supposed. The line J, H, G, is established and undisputed. The Joyes deed called to run 178 poles from this line, and so did the Woods deed. One hundred and seventy-eight poles will take you to the line 10, 1, X. It will thus be seen that there was a lap between the deeds. The park commissioners were claiming up to the line 1, X, so when Marrett and wife made them a deed for the 15 acres embraced within the lines 3, E, F, 6, these...