Branson v. Yeary
| Decision Date | 11 December 1936 |
| Citation | 99 S.W.2d 707,266 Ky. 527 |
| Parties | BRANSON et al. v. YEARY et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Action by J. L. Branson and others against J. B. Yeary and others. From a judgment dismissing their petition as amended plaintiffs appeal.
Reversed.
H. C Clay & Sons, of London, and B. M. Lee, of Harlan, for appellants.
William Sampson, of Harlan, for appellees.
This is an appeal from a judgment of the Harlan circuit court dismissing the petition as amended of the plaintiffs, who are appellants here, because of their refusal to make the description of one acre of land sought to be recovered by them more definite and certain. Plaintiffs brought this suit to recover two tracts of land--one of 100 acres, more or less, and one of one acre. Pursuant to section 125 of the Civil Code of Practice, they undertook to describe the land so that it might be identified. The 100-acre tract was sufficiently described. The other tract was merely described in substance as "the school house lot" of one acre adjoining the 100-acre tract. Defendants moved that the court require plaintiffs to make the description of the schoolhouse lot more definite and certain. In support of their motion defendants filed the affidavits of two surveyors who stated that, while they had surveyed the 100-acre tract (thus indicating the sufficiency of that description), they had been unable to locate the school-house lot. Before the court acted on this motion, plaintiffs amended their petition and alleged that "the plaintiffs have no way of describing that school house lot separate from the other tract, but that where the boundary of land described in the petition calls for the line of the school house lot or with that line that it is the exterior line of the entire boundary and that the boundary as described in the petition was intended to and does include the school house lot therein mentioned." The motion to make more definite and certain was extended to the petition as amended, and was sustained by the court. Upon the refusal of plaintiffs to file a further amendment in conformity with the rule issued, the court dismissed the entire petition, and this appeal followed. It is set out in the original petition that the one-acre tract was deeded for schoolhouse purposes and is no longer used for that purpose. It is therefore immaterial whether the schoolhouse lot is within or without the boundary of the 100-acre tract. If plaintiffs are entitled to the 100-acre tract, they would likewise be entitled to the schoolhouse lot. So far as the record before us now discloses, their right to the 100-acre boundary cannot, therefore, be affected by the existence or location of the schoolhouse lot within that boundary.
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