Chapin v. Fulkerson

• Decision Date: 03 February 1894
• Citation: 24 S.W. 1066,95 Ky. 277
• Parties: CHAPIN v. FULKERSON.
• Court: Kentucky Court of Appeals

24 S.W. 1066

95 Ky. 277

CHAPIN v. FULKERSON.

Court of Appeals of Kentucky.

February 3, 1894

Appeal from circuit court, Lawrence county.

"To be officially reported."

Action by William M. Fulkerson against David Chapin and others to recover possession of 40 acres of a certain survey of land and to quiet title to the remainder of such survey. From a judgment for plaintiff, defendant Chapin appeals. Affirmed.

Alexr. Lackey, for appellant.

Wm. M Fulkerson, in pro. per.

BENNETT C.J.

The appellee was ruled to make his petition more definite. He attempted to do so, but failed, and on the 18th of September 1889, he filed in court a petition as a substitute for the original petition and amendments. The substituted petition alleged that the appellee was the owner of 733 acres of land giving its metes and bounds. It was alleged that the appellee had the possession of the survey, except the parcels that two of the defendants held without right, which parcels were described by metes and bounds in their answers thereto filed in this case It was alleged that the appellant also held the possession of a parcel of said land without right, containing 40 acres, but that the appellee was unable to give its boundary; and he called upon the appellant to give it. The appellee also asked that his title be quieted, and that he have judgment for the possession of said 40 acres of land. The appellant filed a demurrer to this substituted petition which was overruled, and the appellant was allowed 30 days in which to file an answer; but he made no answer, and at the August term of the court, 1890, the petition was taken for confessed, and judgment was rendered in favor of the appellee for the possession of the 40 acres of land, giving its boundary. At the August term, 1892, the appellant tendered answer controverting the allegations of the petition; also, tendering his affidavit attempting to explain why he failed to file his answer in proper time. The substituted petition set up an action of ejectment against the appellant for the possession of 40 acres of land; also, an action to quiet his title to the remainder. If it be urged that the 40 acres of land was not sufficiently described in the petition, it is sufficient to say that it is described as a part of a certain survey which was sufficiently described, and which we think is sufficient to support an action of ejectment. But, if we are mistaken in this, the...