Collins v. Flynn

• Decision Date: 12 November 1913
• Citation: 155 Ky. 717,160 S.W. 496
• Parties: COLLINS v. FLYNN.
• Court: Kentucky Court of Appeals

160 S.W. 496

155 Ky. 717

COLLINS v. FLYNN.

Court of Appeals of Kentucky.

November 12, 1913

Appeal from Circuit Court, Estill County.

Partition by Levi H. Flynn, in which F. M. Collins intervened. From a judgment for plaintiff, the intervener appeals. Affirmed.

J. B White, of Irvine, and Kelly Kash, of Jackson, for appellant.

Riddell & Friend, of Irvine, for appellee.

SETTLE J.

This action was brought by the appellee, Levi H. Flynn, as authorized by section 490 of the Civil Code, to obtain a decree for the sale of 68 acres of land described in the petition, and for a division of the proceeds between him and certain other heirs at law of Levi Flynn, deceased, made parties to the action; it being alleged in the petition that the share of each owner was worth less than $100, that the land is in the possession of the owners, and that the same cannot be divided without materially impairing its value. The appellant, F. M. Collins, whose wife is a daughter of Levi Flynn, deceased, and a sister of the appellee, filed an intervening petition, wherein he claimed to be the owner, and in possession, of 61 acres of the land described in the petition, alleging that he acquired title thereto under and by virtue of patent No. 66,758, issued to him by the commonwealth of Kentucky March 27, 1903. Appellant was made a party defendant to the action, and his petition taken as his answer to that of appellee. Thereafter appellee filed an amended petition and also a reply to the petition and answer of appellant. In the amended petition it was alleged that the title to and possession of the land in controversy descended under the statute, to appellee and the other heirs at law of Levi Flynn at his death, and that the latter acquired title thereto by patent No. 27,350, issued by the commonwealth of Kentucky April 23, 1857; but that five acres of the land lying on the right-hand side of the Napper branch were sold and conveyed by the patentee, before his death, to one Edward Barnes, which left, of the land embraced in the patent boundary, 68 acres. The patent to Levi Flynn, deceased, was filed with and made a part of the petition as amended. The reply, filed by appellee to the petition and answer of appellant, controverted all the affirmative matter thereof. Following the completion of the issues as above indicated the action was transferred to the ordinary docket, and a jury impaneled to try the question of title. Appellant, assuming the burden of proof, introduced his evidence, after which the jury was directed by a peremptory instruction from the court to find for the appellee, and such was their verdict.

The appellant moved for a new trial, and now seeks a reversal of the judgment of the circuit court upon the ground that the court erred in granting the peremptory instruction directing the verdict for appellee; it being claimed by him that the patent to Levi Flynn, deceased, is void, and that appellant's possession of the land should have been held sufficient to defeat its recovery by appellee. It is complained that the trial court, while appellant was testifying in his own behalf, permitted appellee's counsel on cross-examination to have him identify the patent issued to Levi Flynn, deceased, April 23, 1857, and read it as evidence to the jury.

With reference to the latter contention, it is sufficient to say that, on cross-examination of a witness by the adverse party, the latter may prove by such witness any fact which would be competent as evidence bearing upon the issues made by the pleadings. Nor does the fact that the witness happens to be a party to the action alter the rule. It is true that in such case, if the testimony thus adduced be new matter, yet germane to the issues of fact, the witness, as to such new matter, becomes the witness of the party examining him; but such new matter, although constituting admissions favorable to the party eliciting it, cannot, if competent, be excluded because the witness happens to be a party to the action and by reason thereof will suffer from such admissions. It is not, therefore, a proper ground of complaint that the evidence upon which the peremptory instruction was based was obtained in the form of admissions from the appellant himself after testifying in chief in his own behalf.

It is manifest that the testimony elicited from the appellant by counsel for appellee, after he had testified in chief in his own behalf, was sufficient to defeat the claim of title asserted by him to the land in controversy, for he admitted that the land covered by the patent issued to him March 23, 1903, is also embraced by and included in the patent issued to Levi Flynn, deceased, April 23, 1857, and, as the latter is the elder grant, it must prevail, unless the patent is void as contended by appellant, or the superior title acquired thereunder by appellee and the other heirs at law of Levi Flynn, deceased, is defeated by the actual, adverse, and continuous possession of the land by appellant for as much as 15 years.

Section 924, Kentucky Statutes, among other things, provides "Every entry, survey, or patent made or issued under this chapter shall be void, so far as it embraces lands previously entered, surveyed or patented." Is the elder Flynn...