Chenault v. Quisenberry

• Decision Date: 06 June 1900
• Citation: 57 S.W. 234
• Parties: CHENAULT v. QUISENBERRY et al. [1]
• Court: Kentucky Court of Appeals

57 S.W. 234

CHENAULT v. QUISENBERRY et al. ^[1]

Court of Appeals of Kentucky.

June 6, 1900

"Not to be officially reported."

Opinion modified and extended. For former opinion, see 56 S.W. 410.

DU RELLE, J.

The opinion upon the former appeal of this case (Chenault v Quisenberry, 43 S.W. 717) gives a statement of the facts of the case, which, with some few differences, were the same upon the second trial. Appellees (plaintiffs below) undertook to deduce a record title from the commonwealth. This title however, is manifestly defective, and the trial court properly omitted to instruct the jury as to the record title relied upon. But a number of deeds and bonds were permitted to be introduced to show boundary and extent of possession some of which did not include the land in controversy in this case, and should have been excluded from the jury, because they did not bear upon the issue which the jury were required to decide. So the record of the partition suit in the Owsley circuit court between the heirs of Grigsby and Elkins should not have been admitted, as the plat and report of division show, as held in the former opinion, that the land here in controversy was not included in the land then divided. The record in Quisenberry against Spencer in the Owsley circuit court, referred to in the former opinion, shows a sale by appellees' ancestor to Spencer of the tract which, it is claimed by appellees includes, or should be made to include, the land in controversy. It is attempted to show that title to a part of the tract then conveyed was reconveyed to Quisenberry by showing that a written contract was entered into between Spencer and Quisenberry, and acknowledged, and left in the clerk's office, and that the clerk's office was subsequently burned. The evidence of this contract is relied upon by appellees as showing a tenancy in common by Quisenberry and Spencer, from which it is argued that the evidence of possession by Spencer introduced on behalf of appellant inures to the benefit of his co-tenant as a possession by both. We cannot concur in this contention. The evidence of the contract, if admissible at all in the absence of evidence by the custodian of the record of its destruction, shows only that an agreement was made, not for a reconveyance by Spencer of any definite portion of the land or of any definite interest in the whole of it, but, in effect, that there should be a division of the land, Spencer to keep an amount thereof proportionate to the amount of the purchase money already paid by him, and to reconvey the remainder to Quisenberry, the amounts being left undetermined, and to be thereafter agreed upon. This did not make Quisenberry and Spencer tenants in common, nor would it have prevented Spencer pleading the statute of limitations to an action brought by...